UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


$2  0eo.  t>av>en  Putnam. 


Books  and  Their  Makers  during  the  Middle  Ages. — A 

study  of  the  conditions  of  the  production  and  distribution  of 
literature,  from  the  fall  of  the  Roman  Empire  to  the  close 
of  the  Seventeenth  Century.     2  vols.,  sold  separately.     8°, 

each $2.50 

Volume  I.  now  ready. 

Authors  and  Their  Public  in  Ancient  Times. — A  sketch 
of  literary  conditions,  and  of  the  relations  with  the  public 
of  literary  producers,  from  the  earliest  times  to  the  inven- 
tion of  printing  in  1450.  Second  Edition  revised.  120,  gilt 
top, $1   50 

The  Knickerbocker  Press  appears  almost  at  its  best  in  the  delicately- 
simple  and  yet  attractive  form  which  it  has  given  to  this  work,  wherein 
the  chief  of  a  celebrated  publishing  house  sketches  the  gradual  evolution 
of  the  idea  of  literary  property.  .  .  .  The  book  abounds  in  in- 
formation, is  written  in  a  delightfully  succinct  and  agreeable  manner,  with 
apt  comparisons  that  are  often  humorous,  and  with  scrupulous  exactness 
to  statement  and  without  a  sign  of  partiality  either  from  an  author's  or  a 
publisher's  point  of  view. — New  York  Times. 

The  Question  of  Copyright. — Comprising  the  text  of  the 
Copyright  Law  of  the  United  States,  and  a  Summary  of  the 
Copyright  Laws  at  present  in  force  in  the  Chief  Countries 
of  the  World.  Second  edition,  revised,  with  Additions,  and 
with  the  Record  of  Legislation  brought  down  to  March, 
1896.     8°,  gilt     top, $1-75 

A  perfect  arsenal  of  facts  and  arguments,  carefully  elaborated  and  very 
effectively  presented.  .  .  .  Altogether  it  constitutes  an  extremely  val- 
uable history  of  the  development  of  a  very  intricate  right  of  property,  and 
it  is  as  interesting  as  it  is  valuable. — New  York  Nation. 

The  volume  contains  much  useful  information,  and  is  a  decidedly  valu- 
able contribution  to  the  literature  of  copyright.  It  should  prove  of  great 
service  in  leading  to  a  better  appreciation  of  the  subject  on  both  sides  of 
the  Atlantic. — London  Athenteum. 

(5.  p.  Putnam's  Sons 

NEW  YORK  AND  LONDON 


THE 

QUESTION    OF    COPYRIGHT 

COMPRISING  THE  TEXT  OF  THE  COPYRIGHT  LAW  OF 
THE  UNITED  STATES,  A  SUMMARY  OF  THE  COPY- 
RIGHT  LAWS   AT  PRESENT   IN   FORCE  IN 
THE  CHIEF  COUNTRIES  OF  THE  WORLD 

TOGETHER   WITH 

A  REPORT   OF  THE   LEGISLATION   NOW    TENDING  IN   GREAT  BRITAIN, 

A  SKETCH  OF  THE  CONTEST  IN  THE  UNITED  STATES,  1837-189I, 

IN  BEHALF   OF  INTERNATIONAL  COPYRIGHT,    AND   CERTAIN 

PAPERS  ON  THE  DEVELOPMENT  OF  THE  CONCEPTION 

OF  LITERARY  PROPERTY,  AND  ON  THE  RESULTS 

OF   THE    AMERICAN    ACT    OF    1 89 1 

COMPILED    BY 

GEO.   HAVEN   PUTNAM,  A.M. 


SECOND   EDITION,   REVISED,    AND   WITH   ADDITIONAL  MATERIAL 


G.  P.  PUTNAM'S   SONS 

NEW  YORK  LONDON 

27   WEST  TWENTY-THIRD   STREET  24   BEDFORD   STREET,  STRAND 

%\t  Imidurbocker  |jrrss 
1896 


ItU    ° 


Copyright,  1891 

BY 

G.  P.  PUTNAM'S  SONS 
Copyright,  1896 

BY 

G.  P.  PUTNAM'S  SONS 
Entered  at  Stationers'  Hall,  London 


"Ebe  •fcnicfterbocfeer  press,  1Rew  tRocbelle,  1ft.  JtJ. 


I? 

\ 


PREFACE   TO    SECOND    EDITION. 


The  original  edition  of  this  volume  was  prepared 
for  the  press  very  hurriedly,  immediately  after  the 
passage  of  the  Act  of  1891,  for  the  purpose  of  putting 
into  shape,  for  convenient  reference,  the  text  of  the 
new  law,  with  an  analysis  of  its  provisions,  and  of 
presenting  with  this  a  brief  record  of  the  inter- 
national copyright  movement  in  this  country,  and 
a  sketch  of  the  development  throughout  the  world 
of  the  conception  of  literary  property.  Five  years 
have  passed  since  the  United  States,  through  this 
law  of  1 89 1,  adopted  the  policy  which  had  for  a 
number  of  years  been  accepted  by  nearly  all  the 
other  literature-producing  states  of  the  world,  a 
policy  which  assumed  that  the  producers  of  intellec- 
tual property  were  entitled  to  the  protection  given 
by  law  to  all  other  producers,  and  to  the  enjoy- 
ment of  the  fruits  of  their  labors,  irrespective  of 
political  boundaries.  The  American  recognition  of 
this  principle  was  coupled  with  certain  conditions 
which,  while  they  had  no  logical  connection  with 
authors'  rights,  were  believed,  by  the  political  party 
that  in  1891  controlled  the  national  policy,  to  be 
called  for  by  the  exceptional  industrial  conditions  of 
our  country. 


IV  PREFACE   TO   THE   SECOND   EDITION. 

It  was,  on  the  other  hand,  the  opinion  of  those 
who,  in  1 89 1,  were  carrying  on  the  contest  (begun 
nearly  half  a  century  before)  in  behalf  of  the  rights 
of  authors,  American  as  well  as  foreign,  and  of 
what  they  held  to  be  the  honor  of  the  nation,  that 
these  hampering  conditions  and  restrictions  would 
doubtless  be  removed  in  a  few  years'  time.  There 
is  as  yet,  it  must  be  admitted,  no  progress  to  be 
recorded  in  this  direction,  and  it  is  evident  that  the 
date  when  the  United  States  is  to  come  into  full  lit- 
erary fellowship  with  other  civilized  states  by  accept- 
ing the  unrestricted  copyright  of  the  Convention  of 
Berne,  is  to  be  postponed  beyond  the  original  expec- 
tation. Such  an  advance  to  a  logical  and  civilized 
policy  in  regard  to  literary  property  must,  however, 
certainly  be  secured  in  the  not  very  remote  future, 
and  in  any  case  the  most  difficult  step  forward  was 
taken  when  we  expressed  our  willingness  to  acknow- 
ledge, even  with  illogical  conditions,  the  property 
rights  of  aliens,  and  in  so  doing,  were  able  to  secure 
recognition  on  the  other  side  of  the  Atlantic  (and  on 
much  more  favorable  terms)  for  the  similar  rights  of 
Americans. 

I  have  presented  in  a  later  chapter  my  impressions 
concerning  the  general  results  of  the  legislation  of 
1 891,  and  in  regard  to  its  effects  upon  the  interests 
of  both  the  readers  and  the  producers  of  books.  It 
is  in  order  to  admit  that  the  Act  has  on  the  whole 
worked  with  less  friction  and  with  less  considerable 
difficulty  than  had  been  anticipated  by  those  who 
were  responsible  for  its  provisions  as  first  drafted, 
and  who  were  in  a  position  to  realize  how  seriously 


PREFACE  TO   THE   SECOND   EDITION.  V 

the  purpose  and  the  consistency  of  character  of  the 
measure  had  been  imperilled  by  certain  hastily  con- 
sidered "  amendments  "  crowded  into  the  bill,  during 
the  last  days  of  the  contest,  by  both  the  friends  and 
opponents  of  copyright. 

A  summary  of  the  copyright  cases  which  have 
been  brought  before  the  courts  since  July,  1891,  and 
the  issues  of  which  have  turned  upon  the  inter- 
national provisions  of  the  law  that  went  into  effect, 
is  given  in  one  of  the  following  chapters.  The  list  is 
not  a  considerable  one,  and  the  Act  has  thus  far  not 
only  withstood  the  various  attacks  made  upon  its 
general  purpose,  but  has  received,  in  the  details  thus 
far  tested,  the  substantial  support  of  the  courts. 
Certain  suits  which  are  at  this  date  (January,  1896) 
still  pending,  will  probably  be  more  important  than 
those  already  decided,  in  determining  the  purport  of 
its  several  provisions. 

I  have  given  the  record  of  the  Covert  amendment, 
which  was  adopted  in  1895,  and  which  is  the  only 
change  that  has  been  made  in  the  law  since  March, 
1891.  This  amendment  secured  a  correction  that 
was  very  justly  called  for  by  the  newspaper  publish- 
ers, who,  under  the  original  Act,  had  been  exposed  to 
oppressive  penalties  (amounting  sometimes  to  black- 
mail) in  connection  with  the  reproduction  of  photo- 
graphs and  of  popular  art  designs.  I  have  also  noted 
the  attempt  made  under  the  Hicks  bill,  of  the  same 
year,  which  was  very  properly  defeated,  to  undermine 
the  protection  given  by  the  Act  to  European  artists. 

The  most  serious  and  most  legitimate  criticisms  of 
the  law  have  come  from  the  authors  of  France,  Ger- 


VI  PREFACE  TO   THE   SECOND   EDITION. 

many,  and  Italy,  who  have  found  that,  under  the 
requirements  of  American  manufacture  and  of  simul- 
taneous publication,  the  difficulties  were  almost  in- 
superable in  the  way  of  securing  American  copyright 
for  books  which  required  to  be  translated  before 
they  were  available  for  American  readers.  In  Ger- 
many, the  disappointment  and  annoyance  at  what 
are  held  to  be  the  inequitable  restrictions  of  the 
American  statute  have  been  so  considerable  that 
steps  have  been  taken,  on  the  part  of  the  authors 
and  publishers,  to  secure  the  abrogation  of  the  con- 
vention entered  into  in  1893  between  Germany  and 
the  United  States.  The  defenders  of  the  convention 
have  thus  far  succeeded  in  preventing  it  from  being 
set  aside,  but  they  do  not  feel  at  all  assured  that  they 
will  be  able  to  maintain  it  for  an  indefinite  period 
unless  some  indications  may  come  from  this  side  of 
the  Atlantic  that  we  look  forward  to  removing  the 
special  difficulties  complained  of.  The  disappoint- 
ment and  the  criticism  on  the  part  of  the  authors  of 
France  are  hardly  less  bitter,  and  I  understand  that 
it  is  only  the  fact  that  certain  substantial  advantages 
are  secured  under  the  law  to  foreign  artists  and  de- 
signers, and  the  expectation  that  our  people  can  not 
long  remain  satisfied,  while  granting  literary  copy- 
right in  form  to  refuse  it  in  fact,  that  prevent  organ- 
ized attacks,  not  only  in  Paris,  but  in  Rome,  upon 
the  present  international  arrangement.  These  com- 
plaints impress  me  as  well  founded,  and  they  give 
ground  for  a  feeling  of  mortification  on  the  part  of 
Americans  who  have  at  heart  the  reputation  of  their 
country  for  good  faith  and  for  fair  dealing. 


PREFACE   TO   THE   SECOND   EDITION.  Vll 

The  several  points  to  be  kept  in  view  in  connec- 
tion with  future  modifications  of  our  copyright  Act 
are  in  my  judgment  as  follows : 

First.  The  extension  of  the  term  of  copyright, 
with  a  view  to  securing  for  the  producers  of  intellec- 
tual property  the  control  of  their  productions  during 
their  own  lifetime  and  of  preserving  for  their  heirs 
the  enjoyment  of  the  results  from  these  productions 
during  a  reasonable  term  after  the  death  of  the  pro- 
ducer. Under  the  present  conditions,  it  is  quite 
possible  for  an  author  to  be  exposed,  during  his  own 
lifetime,  to  the  competition  of  unauthorized  editions 
of  his  earlier  works.  In  connection  with  such  unau- 
thorized editions,  he  has  not  only  the  annoyance  of 
the  interference  with  the  sales  of  the  editions  issued 
by  his  own  publishers,  but  (what  may  often  constitute 
a  more  serious  grievance)  the  mortification  of  seeing 
reproduced  crude  youthful  productions  which  he  had 
intended  to  cancel,  or  unrevised  and  incomplete  ver- 
sions of  compositions  to  which  in  later  years  he  had 
given  a  final  literary  form. 

Such  an  extension  of  term  is  required  to  secure 
for  an  author  the  privilege  that  is  under  our  laws 
conceded  to  all  other  workers  or  producers,  of  being 
able  to  labor  for  the  advantage  of  his  children  and 
grandchildren.  The  justice  of  such  larger  measure 
of  protection  for  literary  property  and  of  encourage- 
ment for  literary  workers  has  been  fully  recognized 
by  every  country  in  Europe  excepting  Great  Britain, 
and  the  British  law  is  much  more  liberal  to  the  rights 
of  authors  than  is  our  own.  The  British  Act  will 
itself  also  doubtless  in  the  near  future  be  modified 


viii  PREFACE   TO   THE   SECOND   EDITION. 

in  accordance  with  the  bill  now  pending,  so  that  the 
term  of  copyright  will  be  extended  to  correspond 
with  that  of  Germany,  which  covers  the  life  of  the 
author  and  thirty  years  thereafter. 

Second.     Steps  should  be  taken  as  promptly  as 
practicable  to  remove  the  special  grievance  now  ex- 
isting on  the  part  of  European  authors  whose  works 
require  to  be  translated.     France,  Germany,  Italy, 
and  Spain  have  extended  to  American  authors  the 
privileges  possessed  by  their  native  writers,  while  the 
United   States  has  given   to  the  authors   of  these 
countries  no  privileges  which  are  really  equivalent. 
It  may  not  be  practicable  for  a  number  of  years,  in 
connection  with  the  continued  approval  given  by  the 
majority  of  our  citizens  to  the  so-called  protective 
system,  to  remove  from  our  copyright  Act  the  con- 
dition of  manufacturing  within  the  United   States. 
It  will  also  probably  be  necessary  to  retain  in  the 
Act,    in    connection   with   the    manufacturing    pro- 
vision, the  condition    of   simultaneous    publication. 
The  Act  should,  however,  provide  that  an  exception 
to    this   requirement    for   simultaneous   publication 
should    be  made  in   the  case  of  a  work  originally 
issued  in  a  foreign  language.     Such  a  work  could  be 
registered  for  copyright  in  regular  course,  with  a  title- 
page  in  English,  and  with  two  copies  of  the  original 
text  submitted  for  purposes  of  identification  as  pre- 
liminary deposits ;  with  the  provision  that,  within  a 
specific  term  (say  twelve  months)  after  the  date  of 
such  registration,  publication  be  made  of  an  English 
version,  an  edition  of  which  should  be  printed,  accord- 
ing to  the  manufacturing  condition,  from  "  type  set 


PREFACE   TO   THE   SECOND   EDITION.  IX 

within  the  United  States."  If,  within  that  date,  no 
edition  should  be  produced,  the  producers  of  which 
had  complied  with  the  conditions  of  the  American 
Act,  the  right  to  reproduce  the  work  in  English 
might  then  fall  into  the  public  domain.  A  pro- 
vision to  such  effect,  while  by  no  means  sufficient  to 
do  full  justice  to  European  authors,  would  secure  to 
such  of  those  authors  as  really  had  an  American 
reading  public  awaiting  their  books,  the  substantial 
advantages  of  American  copyright.  I  do  not  see 
any  other  way  in  which  foreign  authors  can  obtain 
the  benefits  intended  by  the  Act  as  long  as  the 
manufacturing  condition  and  the  provision  for  simul- 
taneous publication  are  retained.  Such  a  provision 
would  be  in  line  with  the  arrangements  now  in  force 
between  the  European  states  (under  the  Berne  con- 
vention) covering  the  similar  requirements  for  trans- 
lated works. 

Third.  A  substantial  improvement  is  called  for, 
in  connection  with  the  system  for  the  entry  of  copy- 
rights and  the  registration  of  titles,  and  for  the 
preservation  for  use  later  in  the  courts  if  required, 
of  authoritative  evidence  that  the  requirements  of 
the  law  have  been  complied  with. 

The  Acts  of  1870  and  1891  make  adequate  provi- 
sion for  the  registration  of  articles  entered  for  copy- 
right, the  most  important  of  which  articles,  in 
connection  with  the  possible  necessity  of  future 
reference  to  the  registry,  being  undoubtedly  books. 
It  has,  however,  been  found  impracticable,  with  the 
facilities  existing  in  the  office  of  the  Librarian  of 
Congress,   as  that  office  is  now  organized,  to  give 


X  PREFACE   TO   THE   SECOND   EDITION. 

adequate  and  prompt  attention  to  the  business  con- 
nected with  copyrights.  The  library  business  of  the 
Librarian  has  during  the  last  ten  years  increased 
enormously,  and  the  work  of  supervising  effectively 
the  entry  of  copyrights  calls  for  the  establishment 
of  a  registry  of  copyrights  which  shall  not  be  a 
division  of  the  Library  of  Congress,  but  shall  con- 
stitute an  independent  Bureau.  The  producers  of 
books,  works  of  art,  music,  designs  and  other  articles 
entitled  to  copyright,  contribute  each  year  in  the 
form  of  copyright  fees  a  very  considerable  sum,  esti- 
mated at  from  $35,000  to  $40,000.  In  addition  to 
this  money  payment,  they  are  called  upon  to  deposit 
copies  of  the  articles  copyrighted.  In  the  case  of 
books,  two  copies  of  which  must  be  deposited  for 
the  National  Library,  the  value  of  the  volumes  (aggre- 
gating for  1895  over  10,000)  thus  delivered  by  the 
publishers,  constitutes  in  itself  a  large  annual  tax. 
This  tax  is  paid  for  the  support  of  an  effective 
system  of  copyright  entry  and  for  the  maintenance 
of  a  registry  for  titles  which  shall  always  be  available 
for  ready  reference. 

At  the  present  time  the  producers  and  owners  of 
literary  property  are  not  securing  for  this  payment 
adequate  consideration.  It  is  therefore  a  ground  for 
satisfaction  that  the  steps  have  now  been  taken  to 
institute  such  a  Bureau  of  copyrights  as  is  required. 
In  December,  1895,  a  bill  was  introduced  in  the 
House  by  Mr.  Bankhead,  and  a  second  bill  with 
nearly  identical  provisions  was  introduced  in  the 
Senate  by  Senator  Morrill,  under  the  provisions  of 
which  the  office  of  Register  of  Copyrights  is  insti- 


PREFACE   TO   THE   SECOND   EDITION.  xi 

tuted.  With  this  register  are  to  be  appointed  an 
assistant  register  and  a  clerk.  An  appropriation  of 
$7500  is  to  be  made  to  cover  the  salaries  of  the 
three.  The  register  is  to  be  appointed  by  the 
President,  subject  to  the  approval  of  the  Senate,  and 
the  assistant  register,  under  one  bill,  by  the  Secre- 
tary of  the  Treasury,  and  under  the  other,  by  the 
President.  The  general  purpose  of  these  two  bills 
is  to  be  commended.  It  is  my  opinion,  however, 
that  a  larger  appropriation  should  be  made  for  the 
salaries  and  also  that  the  register  should  have 
placed  in  his  own  hands  the  appointment  of  the 
assistant  and  the  clerk. 

Fourth.  A  further  consideration  will  be  required 
for  the  provisions  of  the  Act  having  to  do  with 
property  in  the  right  of  productions.  The  case  of 
Werckmeister  vs.  Pierce  and  Bushnell,  referred  to  in 
another  chapter,  and  one  or  two  other  similar  issues 
that  have  arisen,  indicate  that  the  wording  of  the 
sections  providing  regulations  for  the  entry  of  the 
copyright  of  works  of  art  is  not  sufficiently  explicit, 
and  that  Transatlantic  artists  may  occasionally  fail 
to  secure  for  their  productions  the  protection  which 
it  was  the  purpose  of  the  Act  to  provide. 

I  venture  to  repeat  a  suggestion  which  I  have 
more  than  once  had  occasion  to  put  into  print,  that 
the  framing  of  a  satisfactory  copyright  Act  which 
shall  have  for  its  purpose  an  equitable  and  adequate 
protection  for  the  producers  of  intellectual  property, 
and  which  shall  be  so  worded  as  to  carry  out  that 
purpose  effectively,  should  be  entrusted  to  a  com- 
mission   of   experts.      Such   a   commission    should 


xii  PREFACE   TO   THE   SECOND    EDITION. 

comprise  representatives  of  the  several  interests  to 
be  considered,  producers  of  works  of  literature,  pro- 
ducers of  works  of  art,  publishers  of  books,  and  pub- 
lishers of  art  works.  The  commission  should  also 
include  at  least  one  skilled  copyright  lawyer,  and  it 
may  be  in  order  to  add  some  representative  of  the 
general  public  who  would  have  no  direct  property 
interest  in  the  results  of  such  a  bill  as  may  be  framed. 
All  existing  copyright  systems  of  the  world  except- 
ing that  of  the  United  States  have  been  the  work  of 
such  commissions  of  experts.  The  members  of  these 
commissions  have  had  authority  to  summon  wit- 
nesses and  to  take  testimony,  and  after  having  de- 
voted sufficient  time  to  the  mastery  of  the  details  of 
a  subject  which  is  of  necessity  complex  and  which 
certainly  calls  for  expert  training  and  expert  experi- 
ence, they  have  presented  their  conclusions  in  the 
form  of  a  report  containing  the  specifications  of  the 
legislation  recommended.  The  copyright  laws  of 
the  States  of  Europe  have,  without  an  exception, 
been  based  upon  such  recommendations.  The  Gov- 
ernment of  the  United  States  stands  alone  in  having 
relied  for  its  copyright  legislation  solely  upon  the 
conclusions  that  could  be  arrived  at  by  Congres- 
sional committees.  However  intelligent  the  mem- 
bers of  such  committees  might  be,  and  however 
conscientious  the  interest  given  by  these  Congress- 
men, or  by  some  among  them,  to  the  subject,  experi- 
ence has  shown  that  it  is  not  practicable  to  secure 
wise  and  trustworthy  copyright  legislation  in  this 
manner.  Whenever  we  may  be  able  to  overcome 
that  prejudice  which  declines  to  take  advantage  of 


PREFACE   TO   THE   SECOND   EDITION.  Xlll 

the  experience  and  the  example  of  the  States  of 
Europe  in  connection  with  the  solution  of  problems 
and  questions  similar  to  our  own,  we  shall  doubtless 
decide  to  try  the  experiment  of  instituting  a  com- 
mission of  experts  for  the  reforming  of  our  copyright 
law. 

G.  H.  P. 

New  York,  Febrtiary,  1896. 


PREFACE  TO  THE  FIRST  EDITION. 


In  connection  with  the  recent  enactment  by  Con- 
gress of  a  Copyright  Law  securing  American  Copy- 
right for  aliens,  the  subject  of  the  status  of  literary 
property  and  of  the  rights  of  the  producers  of  liter- 
ature in  the  United  States  and  throughout  the 
world  is  attracting  at  this  time  special  attention. 
I  have  judged,  therefore,  that  a  volume  presenting, 
in  convenient  form  for  reference,  a  summary  of  the 
more  important  of  the  Copyright  Laws  and  Interna- 
tional Conventions  now  in  force,  and  indicating  the 
bearing  of  these  laws  on  the  interests  of  writers  and 
their  readers,  might  prove  of  some  service  to  the 
public.  With  the  summary  of  existing  legislation, 
I  have  included  a  brief  abstract  of  certain  measures 
now  under  consideration  in  England,  some  one  of 
which  is  likely,  before  long,  to  replace  the  present 
British  law. 

The  compilation  lays  no  claim  to  completeness, 
but  is  planned  simply  as  a  selection  of  the  more  im- 
portant and  pertinent  of  the  recent  enactments  and 
of  some  of  the  comments  upon  them. 

I  am  indebted  to  the  courtesy  of  Mr.  Brander 
Matthews  for  the  permission  to  include  in  the  vol- 
ume his  valuable  papers  on  "The  Evolution  of 
Copyright,"  and  "  Copyright  and  Prices  "—papers 
which  were  prepared  for  use  in  the  copyright  cam- 


XVI  PREFACE   TO  THE   FIRST  EDITION. 

paign  and  which  proved  of  very  practical  service. 
Mr.  Bowker,  who  is  an  oid-time  worker  in  the  copy- 
right cause,  has  also  kindly  permitted  the  use  of 
three  pertinent  articles  from  his  pen,  which  were 
first  printed  in  the  valuable  work  on  The  Law  and 
Literature  of  Copyright,  prepared  by  himself  and 
Mr.  Solberg,  a  volume  which  contains  the  most  com- 
prehensive bibliography  of  the  subject  with  which  I 
am  acquainted. 

I  have  thought  it  worth  while,  also,  to  reprint  sev- 
eral papers  of  my  own,  which  appeared  to  have  some 
bearing  on  the  history  or  on  the  status  of  copyright, 
and  which  also  were,  for  the  most  part,  written  for 
"  campaign  "  purposes. 

The  report  submitted  by  Mr.  Simonds  on  behalf 
of  the  House  Committee  on  Patents  presents  a  very 
comprehensive  and  succinct  summary  of  the  grounds 
on  which  the  demand  for  an  International  Copy- 
right Bill  was  based,  and  it  is  probably  the  most 
complete  and  forcible  of  the  many  reports  presented 
to  Congress  on  the  subject.  This  report  appeared, 
therefore,  to  belong  very  properly  in  the  collection. 

In  bringing  together  statements  and  records  from 
a  number  of  sources,  it  was  impracticable  to  avoid 
a  few  repetitions ;  but  in  a  volume  which  lays  no 
claim  to  literary  form,  but  has  been  planned  simply 
as  a  compilation  of  facts  and  information,  a  certain 
amount  of  repetition  will,  I  trust,  not  be  considered 
a  very  grave  defect. 

An  examination  of  the  copyright  legislation  of 
Europe  makes  clear  that  the  United  States,  not- 
withstanding the  important  step  in  advance  it  has, 


PREFACE   TO  THE   FIRST  EDITION.  XV11 

after  such  long  delays,  just  taken,  is  still,  in  its 
recognition  of  the  claims  of  literary  workers,  very 
much  behind  the  other  nations  of  the  civilized 
world. 

The  conditional  measure  for  securing  American 
copyright  for  aliens  (and,  under  reciprocity,  foreign 
copyright  for  Americans),  a  measure  which  is  the 
result  of  fifty-three  years  of  effort  on  the  part  of 
individual  workers  and  of  successive  Copyright 
Committees  and  Leagues,  brings  this  country  to 
the  point  reached  by  France  in  1810,  and  by  Great 
Britain  and  the  states  of  Germany  in  1 836-1 837. 

Under  the  International  Copyright  arrangements 
which  went  into  effect  in  Europe  in  the  earlier  years 
of  the  century,  copyright  was  conceded  to  works  by 
foreign  authors  only  when  such  works  had  been 
manufactured  within  the  territory  of  the  country 
granting  the  copyright.  As  late  as  1 83 1 ,  for  instance, 
Lord  St.  Leonards  stated,  in  the  case  of  Jeffreys  vs. 
Boosey,  that  it  had  never  been  the  intention  of  the 
English  law  to  extend  a  copyright  protection  over 
works  not  manufactured  within  British  territory. 

The  new  American  act,  which  makes  American 
manufacture  a  first  condition  of  American  copy- 
right for  aliens,  brings  us,  therefore,  to  what  has 
usually,  in  other  countries,  been  the  first  stage  in  the 
development  of  International  Copyright — a  stage 
which  was  reached  in  Europe  more  than  half  a  cent- 
ury ago. 

What  is  probably  the  final  stage  was  attained  in 
Europe  in  1887,  when  the  provisions  of  the  Berne 
Convention  went   into  effect.     Under  this  conven- 


xviii  PREFACE  TO  THE  FIRST  EDITION. 

tion,  by  fulfilling  the  requirements  of  their  domestic 
copyright  laws,  authors  can  now  at  once  secure, 
without  further  conditions  or  formalities,  copyright 
for  their  productions  in  all  the  states  belonging  to 
the  International  Union. 

The  states  which,  in  accepting  this  convention 
(the  report  of  which  will  be  found  printed  in  this 
volume),  organized  themselves  into  the  International 
Copyright  Union,  comprised,  in  addition  to  nearly 
all  the  countries  of  Europe,  Tunis  and  Liberia  as 
representatives  of  Africa,  together  with  a  single 
representative  of  the  literary  civilization  of  the 
western  hemisphere,  the  little  republic  of  Hayti. 

It  is  not  probable  that  another  half  century  of 
effort  will  be  required  to  bring  public  opinion  in  the 
American  republic  up  to  the  standard  of  interna- 
tional justice  already  attained  by  Tunis,  Liberia,  and 
Hayti. 

Under  this  standard,  it  is  recognized  that  literary 
producers  are  entitled  to  the  full  control  of  their 
productions,  irrespective  of  political  boundaries  and 
without  the  limitations  of  irrelevant  conditions. 

The  annual  production  of  American  literature 
should  certainly  be  not  a  little  furthered,  both  as 
to  its  quantity  and  its  importance,  by  the  stimulus 
of  the  new  Copyright  Act.  During  the  past  few 
years  American  writers  have  been  securing  growing 
circles  of  readers  in  England  and  on  the  Continent, 
and  a  material  increase  can  now  be  looked  for  in  the 
European  demand  for  American  books — a  demand 
which,  in  the  absence  of  restrictions,  will  be  met  by 
the  export  of  plates  as  well  as  of  editions.     The 


PREFACE   TO  THE   FIRST  EDITION.  XIX 

improvement  and  the  cheapening  of  American 
methods  of  typesetting  and  electrotyping,  and,  in 
fact,  of  all  the  processes  of  book  manufacture,  will, 
I  anticipate,  at  no  distant  date,  remove  from  the 
minds  of  the  men  engaged  in  this  manufacture  the 
fear  that  they  are  not  in  a  position  to  compete  to 
advantage  with  the  book-making  trades  of  Europe, 
and  that  an  International  Copyright,  without  manu- 
facturing conditions,  might  bring  about  a  transfer 
to  England  and  to  Germany  of  a  large  part  of  the 
business  of  American  book-making.  It  was  this 
apprehension  on  the  part  of  the  American  printers, 
and  the  trades  associated  with  them,  that  caused  the 
restrictions  in  the  present  act  to  be  inserted.  It  is 
my  belief,  however,  that  the  trades  in  question  will 
before  long  recognize  that  there  is  no  adequate 
ground  for  such  an  apprehension,  and  that,  admit- 
ting the  importance  of  preventing  any  obstacles 
from  being  placed  in  the  way  of  the  exporting  of 
American  books  and  American  plates,  they  will 
themselves  take  action  to  secure  the  elimination  of 
these  restrictions. 

When  this  has  been  brought  about,  there  should 
be  nothing  further  to  prevent  the  United  States 
from  entering  the  International  Copyright  Union, 
and  thus  completing,  so  far  as  the  literature-produc- 
ing and  literature-consuming  nations  of  the  world 
are  concerned,  the  abolition  of  political  boundaries 
for  literary  property. 

While  the  recognition  by  our  country  of  the 
claims  of  foreign  authors  has  been  so  tardy,  its  leg- 
islation for  domestic  copyright  has  also  been  based 


XX  PREFACE  TO  THE  FIRST   EDITION. 

upon  a  narrower  conception  of  the  property  rights 
of  authors  than  that  accepted  by  the  legislators  of 
Europe.  The  law  of  1870  (given  in  full  in  this  vol- 
ume), which  is  in  this  respect  unchanged  by  the  Act 
of  1 891,  gives  to  a  literary  production  a  first  term  of 
copyright  of  twenty-eight  years,  and  an  extension 
of  such  term  for  fourteen  years  further  only  if  at  the 
expiration  of  the  first  term  the  author  or  the  author's 
widow  or  children  be  living.  If  the  author,  dying 
before  the  expiration  of  the  first  term,  leave  neither 
widow  nor  children,  the  copyright  of  his  work  is  lim- 
ited to  twenty-eight  years.  It  was  for  this  reason 
that  Washington  Irving  was  unable  to  insure  for  his 
nieces  (his  adopted  children)  the  provision  which 
they  needed,  and  which  a  continued  copyright  in 
their  uncle's  works  would  have  secured  for  them. 

In  England,  the  present  law  gives  a  copyright 
term  of  forty-two  years,  or  for  the  life  of  the  author 
and  for  seven  years  thereafter,  whichever  term  may 
be  the  longer ;  and  the  amended  law  now  proposed 
extends  the  term  for  thirty  years  after  the  death  of 
the  author. 

This  latter  is  the  term  provided  in  the  law  of  the 
German  Empire,  while  in  Russia  and  in  France  the 
copyright  endures  for  the  life  of  the  author  and  for 
fifty  years  thereafter. 

The  steady  tendency  of  legislation  has  been 
towards  an  increase  of  the  term  of  copyright  and 
a  recognition  of  the  right  of  a  literary  producer  to 
work  for  his  grandchildren  as  well  as  for  his  children  ; 
and  the  desirability  of  bringing  the  American  term 
into  accord  with  that  in  force  in  Germany  and  pro- 


PREFACE   TO  THE   FIRST  EDITION.  XXI 

posed  in  England,  namely,  the  life  of  the  author  and 
thirty  years  thereafter,  is  now  a  fair  subject  for  con- 
sideration. 

Since  the  framing  of  the  American  Act  of  1870, 
not  a  few  questions  have  arisen  in  connection  with 
new  processes  of  reproduction  of  works  of  art,  etc., 
which  are  not  adequately  provided  for  in  that  act ; 
and  the  criticism  is  often  heard  from  American 
artists  that  the  copyright  protection  for  their  designs 
is  inadequate. 

The  American  act  of  the  present  year,  providing 
copyright  for  aliens,  can  hardly  be  accepted  as  final 
legislation,  and  some  of  its  provisions  will,  doubtless, 
at  no  distant  date,  after  they  have  had  the  practical 
test  of  experience,  call  for  further  consideration. 

It  seems  to  me  that  in  order  to  secure  consistent, 
enduring,  and  satisfactory  legislation,  that  will  fairly 
meet  all  the  requirements  and  will  not  bring  about 
needless  business  perplexities  necessitating  for  their 
solution  frequent  appeals  to  the  courts,  it  will  be 
wise  to  follow  the  precedent  of  Germany,  France, 
and  England,  and  to  arrange  for  the  appointment  of 
a  commission  of  experts  to  make  a  thorough  inves- 
tigation of  the  whole  subject  of  copyright,  literary, 
musical,  and  artistic,  domestic  and  international. 
The  report  of  such  a  commission  should  form  a 
much  more  satisfactory  basis  for  trustworthy  legis- 
lation than  could  be  secured  in  any  other  way.  A 
subject  like  copyright  is  evidently  not  one  which 
can  safely  be  intrusted  to  the  average  congressional 
committees,  especially  if  the  bills  framed  in  such 
committees  are  to  have    injected   into  them  after- 


xxii  PREFACE   TO  THE   FIRST  EDITION. 

wards  the  "amendments"  of  eleventh-hour  experts 
of  the  Senate  or  the  House,  men  who,  having  looked 
into  the  matter  over  night,  feel  assured  that  they 
know  all  about  it. 

The  action  of  the  Senate  in  February,  1891,  on  the 
Platt-Simonds  Bill,  is  a  fair  example  of  the  kind  of 
amateur  and  haphazard  legislation  referred  to. 

Under  the  lead  of  the  principal  republican  and 
democratic  opponents  of  the  Copyright  Bill,  an 
amendment  was  offered  and  was  actually  passed 
by  the  Senate,  which  had  the  effect  of  abolishing 
domestic  copyright ;  and  it  was  not  until  several  days 
later,  when  this  unlooked-for  result  of  senatorial 
wisdom  had  been  pointed  out  by  outside  critics, 
that  the  amendment  was  rescinded.1 

If  this  volume  may  serve  to  direct  public  atten- 
tion to  the  advisability  of  the  appointment  of  a 
copyright  commission  through  whose  labors  the 
risks  of  such  haphazard  copyright  legislation  may  at 
least  be  minimized,  an  important  purpose  of  its  pub- 
lication will  have  been  accomplished. 

G.  H.  P. 

New  York,  March  28,  1891. 

1  The  Sherman  amendment,  as  originally  framed,  authorized  the 
importation,  irrespective  of  the  permission  of  the  author,  of  foreign 
editions  of  works,  whether  by  foreign  or  American  authors,  which  had 
secured  American  copyright. 

The  amendment  was  passed  February  14,  1891,  by  a  vote  of  25  to 
24,  and  was  rescinded  February  17,  by  a  vote  of  31  to  29.  Its  mover 
was  Senator  Sherman  of  Ohio,  and  he  was  actively  supported  by 
Senators  Daniels  of  Virginia,  Hale  of  Maine,  Gorman  of  Maryland, 
and  other  experienced  legislators. 


CONTENTS. 


PAGE 

Preface  to  Second  Edition iii 

Preface  to  First  Edition xv 

I.    The  Law  of  Copyright  in  the  United  States...      i 
Text  of  Statutes  in  Force  July  i,  1895. 
Directions  for  Securing  Copyrights. 
Foreign  States  with  which  the  United  States  is  in 

Copyright  Relations. 
Amendments  to  the  Copyright  Act  Proposed  since 
July  1,  1 891. 
II.     Summary  of  Copyright  Legislation  in  the  United 

States,  by  R.  R.  Bowker 28 

III.     Henry  Clay's  Report  in  Favor  of  International 

Copyright 33 

IV.     History  of  the  Contest  for  International  Copy- 
right       40 

V.    The  Hawley  Copyright  Bill  of  January,  1885 64 

VI.     The  Pearsall-Smith  Scheme  of  Copyright 65 

VII.     Report  of  the  House  Committee  on  Patents,  on 
the  International  Copyright  Bill  of  1890-91, 

by  W.  E.  Simonds 77 

VIII.    The  Platt-Simonds  Copyright  Act  of  March,  1891.  131 
IX.     Analysis  of  the  Provisions  of  the  Copyright  Act 

of  1891 138 

X.    Extracts  from  the  Speeches  in  the  Copyright 
Debates  in  Congress,  1891,  together  with  the 

Vote  in  the  House  and  in  the  Senate 148 

XI.     Results    of   the  Copyright  Law   of   1891,   Con- 
sidered in  January,  1894 162 

xxiii 


XXIV 


CONTENTS. 


PAGE 

XII.     A  Summary  of  International  Copyright  Cases 

and  Decisions  since  the  Act  of  1891 175 

XIII.  Abstract  of   the  Copyright   Law  of  Great 

Britain,  with   a  Digest  of  These  Laws, 
Prepared  by  Sir  James  Stephen 188 

XIV.  Report  of  the  British  Copyright  Commission 

OF    1878 214 

XV.     The  Monkswell  Copyright  Bill  of  1890,  with 

AN  ANALYSIS  OF  ITS  PROVISIONS,  BY  SlR  FRED- 
ERICK Pollock 275 

XVI.     The  Berne  Convention  of  1887 287 

XVII.     The  Montevideo  Convention  of  1889 314 

XVIII.     States  avhich   have  Become   Parties  to  the 

Convention  of  Berne  (January,  1896) 316 

XIX.     The  Nature  and  Origin  of  Copyright,  by  R.  R. 

Bowker 3*7 

XX.     The    Evolution    of   Copyright,   by    Brander 

Matthews 324 

XXI.     Literary  Property  ;  an  Historical  Sketch 351 

XXII.     Statutory  Copyright  in  England,   by  R.  R. 

Bowker 4*2 

XXIII.     Cheap  Books  and    Good  Books,   by  Brander 

Matthews 418 

XXIV.     Copyright  and  the  Prices  of  Books 441 

XXV.     "  Copyright,"  "  Monopolies,"  and    "  Protec- 
tion " 449 

XXVI.     Summary  of  the  Existing  Copyright  Laws  of 
the   More  Important  Countries    of   the 

World  (January,  1896) 454 

XXVII.     The  Status  of  Canada  in  Regard  to  Copy- 
right (January,  1896) 467 

Index 477 

The  papers  for  which  the  name  of  the  author  is  not  specified,  are  the  work  of 
the  compiler. 


THE   QUESTION   OF   COPYRIGHT 


THE 
QUESTION    OF    COPYRIGHT. 


i. 


THE  LAW  OF  COPYRIGHT  IN  THE  UNITED 
STATES. 

Text  of  the  Statutes  in  force  July  i,  1895.1 

Section  4948.  All  records  and  other  things  relat- 
ing to  copyrights  and  required  by  law  to  be  pre- 
served, shall  be  under  the  control  of  the  Librarian 
of  Congress,  and  kept  and  preserved  in  the  Library 
of  Congress  ;  and  the  Librarian  of  Congress  shall 
have  the  immediate  care  and  supervision  thereof, 
and,  under  the  supervision  of  the  Joint  Committee 
of  Congress  on  the  Library,  shall  perform  all  acts 
and  duties  required  by  law  touching  copyrights. 

Sec.  4949.  The  seal  provided  for  the  office  of  the 
Librarian  of  Congress  shall  be  the  seal  thereof,  and 

1  From  the  Revised  Statutes  of  the  United  States,  in  force  December 
1,  1873,  as  amended  by  the  Acts  of  June  18,  1874,  August  I,  1882, 
March  3,  1891,  and  March  2,  1895. 
I 


2  THE   QUESTION   OF   COPYRIGHT. 

by  it  all  records  and  papers  issued  from  the  office, 
and  to  be  used  in  evidence  shall  be  authenticated. 

Sec.  4950.  The  Librarian  of  Congress  shall  give  a 
bond,  with  sureties,  to  the  Treasurer  of  the  United 
States,  in  the  sum  of  five  thousand  dollars,  with  the 
condition  that  he  will  render  to  the  proper  officers 
of  the  Treasury  a  true  account  of  all  moneys  received 
by  virtue  of  his  office. 

Sec.  495  i.  The  Librarian  of  Congress  shall  make  an 
annual  report  to  Congress  of  the  number  and  descrip- 
tion of  copyright  publications  for  which  entries  have 
been  made  during  the  year. 

Sec.  4952.  The  author,  inventor,  designer,  or  pro- 
prietor of  any  book,  map,  chart,  dramatic  or  musical 
composition,  engraving,  cut,  print,  or  photograph  or 
negative  thereof,  or  of  a  painting,  drawing,  chromo, 
statuary,  and  of  models  or  designs  intended  to  be 
perfected  as  works  of  the  fine  arts,  and  the  execu- 
tors, administrators,  or  assigns  of  any  such  person, 
shall,  upon  complying  with  the  provisions  of  this 
chapter,  have  the  sole  liberty  of  printing,  reprinting, 
publishing,  completing,  copying,  executing,  finishing, 
and  vending  the  same  ;  and,  in  the  case  of  a  dramatic 
composition,  of  publicly  performing  or  representing 
it,  or  causing  it  to  be  performed  or  represented  by 
others.  And  authors  or  their  assigns  shall  have 
exclusive  right  to  dramatize  or  translate  any  of  their 
works,  for  which  copyright  shall  have  been  obtained 
under  the  laws  of  the  United  States. 

Sec.  4953.  Copyrights  shall  be  granted  for  the 
term  of  twenty-eight  years  from  the  time  of  recording 
the  title  thereof,  in  the  manner  hereinafter  directed. 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.       3 

SEC.  4954-  The  author,  inventor,  or  designer,  if  he 
be  still  living,  or  his  widow  or  children,  if  he  be 
dead,  shall  have  the  same  exclusive  right  continued 
for  the  further  term  of  fourteen  years,  upon  record- 
ing the  title  of  the  work  or  description  of  the  article 
so  secured  a  second  time,  and  complying  with  all 
other  regulations  in  regard  to  original  copyrights, 
within  six  months  before  the  expiration  of  the  first 
term.  And  such  person  shall,  within  two  months 
from  the  date  of  said  renewal,  cause  a  copy  of  the 
record  thereof  to  be  published  in  one  or  more  news- 
papers, printed  in  the  United  States,  for  the  space  of 
four  weeks. 

Sec.  4955.  Copyrights  shall  be  assignable  in  law 
by  any  instrument  of  writing,  and  such  assignment 
shall  be  recorded  in  the  office  of  the  Librarian  of 
Congress  within  sixty  days  after  its  execution  ;  in 
default  of  which  it  shall  be  void  as  against  any  subse- 
quent purchaser  or  mortgagee  for  a  valuable  con- 
sideration, without  notice. 

SEC.  4956.  No  person  shall  be  entitled  to  a  copy- 
right unless  be  shall,  on  or  before  the  day  of  publi- 
cation, in  this  or  any  foreign  country,  deliver  at  the 
office  of  the  Librarian  of  Congress,  or  deposit  in  the 
mail  within  the  United  States,  addressed  to  the 
Librarian  of  Congress,  at  Washington,  District  of 
Columbia,  a  printed  copy  of  the  title  of  the  book, 
map,  chart,  dramatic  or  musical  composition,  engrav- 
ing, cut,  print,  photograph,  or  chromo,  or  a  descrip- 
tion of  the  painting,  drawing,  statue,  statuary,  or  a 
model  or  design,  for  a  work  of  the  fine  arts,  for 
which  he  desires  a  copyright  ;  nor  unless  he  shall 


4  THE   QUESTION   OF   COPYRIGHT. 

also,  not  later  than  the  day  of  the  publication  there- 
of, in  this  or  any  foreign,  country,  deliver  at  the 
office  of  the  Librarian  of  Congress,  at  Washington, 
District  of  Columbia,  or  deposit  in  the  mail,  within 
the  United  States,  addressed  to  the  Librarian  of 
Congress,  at  Washington,  District  of  Columbia,  two 
copies  of  such  copyright  book,  map,  chart,  dramatic 
or  musical  composition,  engraving,  chromo,  cut,  print, 
or  photograph,  or  in  case  of  a  painting,  drawing, 
statue,  statuary,  model,  or  design  for  a  work  of  the 
fine  arts,  a  photograph  of  the  same  :  Provided,  That 
in  the  case  of  a  book,  photograph,  chromo,  or  litho- 
graph, the  two  copies  of  the  same  required  to  be 
delivered  or  deposited  as  above,  shall  be  printed 
from  type  set  within  the  limits  of  the  United  States, 
or  from  plates  made  therefrom,  or  from  negatives,  or 
drawings  on  stone  made  within  the  limits  of  the 
United  States,  or  from  transfers  made  therefrom. 
During  the  existence  of  such  copyright  the  importa- 
tion into  the  United  States  of  any  book,  chromo, 
lithograph,  or  photograph,  so  copyrighted,  or  any 
edition  or  editions  thereof,  or  any  plates  of  the  same 
not  made  from  type  set,  negatives,  or  drawings  on 
stone  made  within  the  limits  of  the  United  States, 
shall  be,  and  it  is  hereby  prohibited,  except  in  the 
cases  specified  in  paragraphs  512  to  516,  inclusive,  in 
section  two  of  the  act  entitled,1  an  act  to  reduce  the 
revenue  and  equalize  the  duties  on  imports  and  for 

1  Note. — These  paragraphs  of  the  Tariff  act  permit  free  importa- 
tion of  books,  etc.,  more  than  twenty  years  old,  books  in  foreign 
languages,  publications  imported  by  the  Government,  or  for  societies, 
colleges,  etc. ,  and  libraries  which  have  been  in  use  one  or  more  years, 
brought  from  abroad  by  persons  or  families  and  not  for  sale. 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.       5 

other  purposes,  approved  October  I,  1890;  and  ex- 
cept in  the  case  of  persons  purchasing  for  use  and 
not  for  sale,  who  import,  subject  to  the  duty  there- 
on, not  more  than  two  copies  of  such  book  at  any 
one  time  ;  and,  except  in  the  case  of  newspapers 
and  magazines,  not  containing  in  whole  or  in  part 
matter  copyrighted  under  the  provisions  of  this 
act,  unauthorized  by  the  author,  which  are  hereby 
exempted  from  prohibition  of  importation  : 

Provided,  nevertheless,  That  in  the  case  of  books  in 
foreign  languages,  of  which  only  translations  in 
English  are  copyrighted,  the  prohibition  of  importa- 
tion shall  apply  only  to  the  translation  of  the  same, 
and  the  importation  of  the  books  in  the  original 
language  shall  be  permitted. 

SEC.  4957.  The  Librarian  of  Congress  shall  record 
the  name  of  such  copyright  book,  or  other  article, 
forthwith  in  a  book  to  be  kept  for  that  purpose,  in 
the  words  following :  "  Library  of  Congress,  to  wit : 

Be   it   remembered    that    on    the day    of  

A.  B.,  of  hath  deposited  in  this  office  the  title 

of  a  book,  (map,  chart,  or  otherwise,  as  the  case 
may  be,  or  description  of  the  article,)  the  title  or 
description  of  which  is  in  the  following  words,  to 
wit :  (here  insert  the  title  or  description,)  the  right 
whereof  he  claims  as  author,  (originator,  or  pro- 
prietor, as  the  case  may  be,)  in  conformity  with  the 
laws  of  the  United  States  respecting  copyrights.  C. 
D.,  Library  of  Congress."  And  he  shall  give  a  copy 
of  the  title  or  description  under  the  seal  of  the 
Librarian  of  Congress,  to  the  proprietor,  whenever 
he  shall  require  it. 


6  THE   QUESTION   OF   COPYRIGHT. 

Sec.  4958.  The  Librarian  of  Congress  shall  receive 
from  the  persons  to  whom  the  services  designated 
are  rendered,  the  following  fees:  1.  For  recording 
the  title  or  description  of  any  copyright  book  or  other 
article,  fifty  cents.  2.  For  every  copy  under  seal 
of  such  record  actually  given  to  the  person  claiming 
the  copyright,  or  his  assigns,  fifty  cents.  3.  For  re- 
cording and  certifying  any  instrument  of  writing  for 
the  assignment  of  a  copyright,  one  dollar.  5.  For 
every  copy  of  an  assignment,  one  dollar.  All  fees 
so  received  shall  be  paid  into  the  Treasury  of  the 
United  States  :  Provided,  That  the  charge  for  record- 
ing the  title  or  description  of  any  article  entered  for 
copyright,  the  production  of  a  person  not  a  citizen 
or  resident  of  the  United  States,  shall  be  one  dollar, 
to  be  paid  as  above  into  the  Treasury  of  the  United 
States,  to  defray  the  expenses  of  lists  of  copyrighted 
articles  as  hereinafter  provided  for. 

And  it  is  hereby  made  the  duty  of  the  Librarian  of 
Congress  to  furnish  to  the  Secretary  of  the  Treasury 
copies  of  the  entries  of  titles  of  all  books  and  other 
articles  wherein  the  copyright  had  been  completed 
by  the  deposit  of  two  copies  of  such  book  printed 
from  type  set  within  the  limits  of  the  United  States, 
in  accordance  with  the  provisions  of  this  act,  and  by 
the  deposit  of  two  copies  of  such  other  article  made 
or  produced  in  the  United  States  ;  and  the  Secretary 
of  the  Treasury  is  hereby  directed  to  prepare  and 
print,  at  intervals  of  not  more  than  a  week,  catalogues 
of  such  title-entries  for  distribution  to  the  collectors 
of  customs  of  the  United  States  and  to  the  post- 
masters of  all  post  offices  receiving  foreign  mails,  and 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.       J 

such  weekly  lists,  as  they  are  issued,  shall  be  fur- 
nished to  all  parties  desiring  them,  at  a  sum  not 
exceeding  five  dollars  per  annum  ;  and  the  Secretary 
and  the  Postmaster  General  are  hereby  empowered 
and  required  to  make  and  enforce  such  rules  and 
regulations  as  shall  prevent  the  importation  into  the 
United  States,  except  upon  the  conditions  above 
specified,  of  all  articles  prohibited  by  this  act. 

Sec.  4959.  The  proprietor  of  every  copyright  book 
or  other  article  shall  deliver  at  the  office  of  the  Li- 
brarian of  Congress,  or  deposit  in  the  mail,  addressed 
to  the  Librarian  of  Congress,  at  Washington,  Dis- 
trict of  Columbia,  a  copy  of  every  subsequent  edition 
wherein  any  substantial  changes  shall  be  made  :  Pro- 
vided, however,  That  the  alterations,  revisions,  and 
additions  made  to  books  by  foreign  authors,  hereto- 
fore published,  of  which  new  editions  shall  appear 
subsequently  to  the  taking  effect  of  this  act,  shall  be 
held  and  deemed  capable  of  being  copyrighted  as 
above  provided  for  in  this  act,  unless  they  form  a 
part  of  the  series  in  course  of  publication  at  the  time 
this  act  shall  take  effect. 

Sec.  4960.  For  every  failure  on  the  part  of  the 
proprietor  of  any  copyright  to  deliver,  or  deposit  in 
the  mail,  either  of  the  published  copies,  or  descrip- 
tion, or  photograph,  required  by  Sections  4956  and 
4959,  the  proprietor  of  the  copyright  shall  be  liable 
to  a  penalty  of  twenty-five  dollars,  to  be  recovered 
by  the  Librarian  of  Congress,  in  the  name  of  the 
United  States,  in  an  action  in  the  nature  of  an  action 
of  debt,  in  any  district  court  of  the  United  States 
within  the  jurisdiction  of  which  the  delinquent  may 
reside  or  be  found. 


8  THE   QUESTION   OF   COPYRIGHT. 

SEC.  4961.  The  postmaster  to  whom  such  copy- 
right book,  title,  or  other  article  is  delivered,  shall,  if 
requested,  give  a  receipt  therefor ;  and  when  so  de- 
livered he  shall  mail  it  to  its  destination. 

Sec.  4962.  No  person  shall  maintain  an  action  for 
the  infringement  of  his  copyright  unless  he  shall 
give  notice  thereof  by  inserting  in  the  several  copies 
of  every  edition  published,  on  the  title-page,  or  the 
page  immediately  following,  if  it  be  a  book  ;  or  if  a 
map,  chart,  musical  composition,  print,  cut,  engrav- 
ing, photograph,  painting,  drawing,  chromo,  statue, 
statuary,  or  model  or  design  intended  to  be  per- 
fected and  completed  as  a  work  of  the  fine  arts,  by 
inscribing  upon  some  visible  portion  thereof,  or  of 
the  substance  on  which  the  same  shall  be  mounted, 
the   following  words,  viz. :  "  Entered    according  to 

act  of  Congress,  in  the  year  ,  by  A.  B.,  in  the 

office  of  the  Librarian  of  Congress,  at  Washington  ;  " 
or,  at  his  option,  the  word  "  Copyright,"  together 
with  the  year  the  copyright  was  entered,  and  the 
name  of  the  party  by  whom  it  was  taken  out,  thus : 
"  Copyright,  18—,  by  A.  B." 

Sec.  4963.  Every  person  who  shall  insert  or  im- 
press such  notice,  or  words  of  the  same  purport,  in 
or  upon  any  book,  map,  chart,  dramatic  or  musical 
composition,  print,  cut,  engraving,  or  photograph,  or 
other  article,  for  which  he  has  not  obtained  a  copy- 
right, shall  be  liable  to  a  penalty  of  one  hundred 
dollars,  recoverable  one-half  for  the  person  who  shall 
sue  for  such  penalty,  and  one-half  to  the  use  of  the 
United  States. 

Sec.  4964.  Every  person  who,  after  the  recording 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.       9 

of  the  title  of  any  book  and  the  depositing  of  two 
copies  of  such  book  as  provided  by  this  act,  shall, 
contrary  to  the  provisions  of  this  act,  within  the 
term  limited,  and  without  the  consent  of  the  pro- 
prietor of  the  copyright  first  obtained  in  writing, 
signed  in  the  presence  of  two  or  more  witnesses, 
print,  publish,  dramatize,  translate,  or  import,  or, 
knowing  the  same  to  be  so  printed,  published,  drama- 
tized, translated,  or  imported,  shall  sell  or  expose  to 
sale  any  copy  of  such  book,  shall  forfeit  every  copy 
thereof  to  such  proprietor,  and  shall  also  forfeit  and 
pay  such  damages  as  may  be  recovered  in  a  civil 
action  by  such  proprietor  in  any  court  of  competent 
jurisdiction. 

SEC.  4965.  If  any  person,  after  the  recording  of 
the  title  of  any  map,  chart,  dramatic  or  musical  com- 
position, print,  cut,  engraving,  or  photograph,  or 
chromo,  or  of  the  description  of  any  painting,  draw- 
ing, statue,  statuary,  or  model  or  design  intended  to 
be  perfected  and  executed  as  a  work  of  the  fine  arts 
as  provided  by  this  act,  shall,  within  the  term  limited, 
contrary  to  the  provisions  of  this  act,  and  without 
the  consent  of  the  proprietor  of  the  copyright  first 
obtained  in  writing,  signed  in  presence  of  two  or 
more  witnesses,  engrave,  etch,  work,  copy,  print, 
publish,  dramatize,  translate,  or  import,  either  in 
whole  or  in  part,  or  by  varying  the  main  design, 
with  intent  to  evade  the  law,  or  knowing  the  same 
to  be  so  printed,  published,  dramatized,  translated, 
or  imported,  shall  sell  or  expose  to  sale  any  copy  of 
such  map  or  other  article,  as  aforesaid,  he  shall  for- 
feit  to  the   proprietor  all  the  plates  on  which   the 


IO  THE   QUESTION   OF   COPYRIGHT. 

same  shall  be  copied,  and  every  sheet  thereof,  either 
copied  or  printed,  and  shall  further  forfeit  one  dollar 
for  every  sheet  of  the  same  found  in  his  possession, 
either  printing,  printed,  copied,  published,  imported, 
or  exposed  for  sale  ;  and  in  case  of  a  painting,  statue, 
or  statuary,  he  shall  forfeit  ten  dollars  for  every  copy 
of  the  same  in  his  possession,  or  by  him  sold  or  ex- 
posed for  sale  ;  one-half  thereof  to  the  proprietor  and 
the  other  half  to  the  use  of  the  United  States.  Pro- 
vided, however,  That  in  case  of  any  such  infringement 
of  the  copyright  of  a  photograph  made  from  any 
object  not  a  work  of  fine  arts,  the  sum  to  be  recov- 
ered in  any  action  brought  under  the  provisions  of 
this  section  shall  be  not  less  than  one  hundred  dol- 
lars, nor  more  than  five  thousand  dollars,  and,  Pro- 
vided further,  That  in  case  of  any  such  infringement 
of  the  copyright  of  a  painting,  drawing,  statue,  en- 
graving, etching,  print,  or  model  or  design  for  a  work 
of  the  fine  arts  or  of  a  photograph  of  a  work  of  the 
fine  arts,  the  sum  to  be  recovered  in  any  action 
brought  through  the  provisions  of  this  section  shall 
be  not  less  than  two  hundred  and  fifty  dollars,  and 
not  more  than  ten  thousand  dollars.  One-half  of  all 
the  foregoing  penalties  shall  go  to  the  proprietors  of 
the  copyright  and  the  other  half  to  the  use  of  the 
United  States.1 

Sec.  4966.  Any  person  publicly  performing  or 
representing  any  dramatic  composition  for  which  a 
copyright  has  been  obtained,  without  the  consent  of 
the  proprietor  thereof,  or  his  heirs  or  assigns,  shall 

1  This  is  the  provision  of  the  act  of  March,  1891,  as  amended  by 
the  Covert  act  of  March,  1895. 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.     I  I 

be  liable  for  damages  therefor ;  such  damages  in  all 
cases  to  be  assessed  at  such  sum,  not  less  than  one 
hundred  dollars  for  the  first,  and  fifty  dollars  for 
every  subsequent  performance,  as  to  the  court  shall 
appear  to  be  just. 

SEC.  4967.  Every  person  who  shall  print  or  pub- 
lish any  manuscript  whatever,  without  the  consent 
of  the  author  or  proprietor  first  obtained,  shall  be 
liable  to  the  author  or  proprietor  for  all  damages 
occasioned  by  such  injury. 

Sec.  4968.  No  action  shall  be  maintained  in  any 
case  of  forfeiture  or  penalty  under  the  copyright 
laws,  unless  the  same  is  commenced  within  two  years 
after  the  cause  of  action  has  arisen. 

SEC.  4969.  In  all  actions  arising  under  the  laws 
respecting  copyrights  the  defendant  may  plead  the 
general  issue,  and  give  the  special  matter  in  evidence. 

SEC.  4970.  The  circuit  courts,  and  district  courts 
having  the  jurisdiction  of  circuit  courts,  shall  have 
power,  upon  bill  in  equity,  filed  by  any  party  ag- 
grieved, to  grant  injunctions  to  prevent  the  vio- 
lation of  any  right  secured  by  the  laws  respecting 
copyrights,  according  to  the  course  and  principles  of 
courts  of  equity,  on  such  terms  as  the  court  may 
deem  reasonable. 

Sec.  — .  [Approved  June  18,  1874,  to  take  effect 
August  1,  1874.]  In  the  construction  of  this  act  the 
words  "  engraving,"  "  cut,"  and  "  print,"  shall  be  ap- 
plied only  to  pictorial  illustrations  or  works  con- 
nected with  the  fine  arts,  and  no  prints  or  labels 
designed  to  be  used  for  any  other  articles  of  manu- 
facture shall  be  entered  under  the  copyright  law,  but 


12  THE   QUESTION   OF   COPYRIGHT. 

may  be  registered  in  the  Patent  Office.  And  the 
Commissioner  of  Patents  is  hereby  charged  with  the 
supervision  and  control  of  the  entry  or  registry  of 
such  prints  or  labels,  in  conformity  with  the  regu- 
lations provided  by  law  as  to  copyright  of  prints, 
except  that  there  shall  be  paid  for  recording  the 
title  of  any  print  or  label,  not  a  trade-mark,  six  dol- 
lars, which  shall  cover  the  expense  of  furnishing  a 
copy  of  the  record,  under  the  seal  of  the  Commis- 
sioner of  Patents,  to  the  party  entering  the  same. 

SEC.  — .  [Approved  August  I,  1882.]  That  manu- 
facturers of  designs  for  molded  decorative  articles, 
tiles,  plaques,  or  articles  of  pottery  or  metal,  subject 
to  copyright,  may  put  the  copyright  mark  prescribed 
by  section  forty-nine  hundred  and  sixty-two  of  the 
Revised  Statutes,  and  acts  additional  thereto,  upon 
the  back  or  bottom  of  such  articles,  or  in  such  other 
place  upon  them  as  it  has  heretofore  been  usual  for 
manufacturers  of  such  articles  to  employ  for  the 
placing  of  manufacturers',  merchants',  and  trade- 
marks thereon. 

Sec.  11.  [Approved  March  3,  1891,  to  take  effect 
July  1,  1 89 1.]  That  for  the  purpose  of  this  act  each 
volume  of  a  book  in  two  or  more  volumes,  when  such 
volumes  are  published  separately,  and  the  first  one 
shall  not  have  been  issued  before  this  act  shall  take 
effect,  and  each  number  of  a  periodical  shall  be  con- 
sidered an  independent  publication,  subject  to  the 
form  of  copyrighting  as  above. 

Sec.  12.  That  this  act  shall  go  into  effect  on  the 
first  day  of  July,  Anno  Domini  eighteen  hundred 
and  ninety-one. 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES      1 3 

Sec.  13.  [Approved  March  3,  1 891,  to  take  effect 
July  1,  1 891.]  That  this  act  shall  only  apply  to  a 
citizen  or  subject  of  a  foreign  state  or  nation  when 
such  foreign  state  or  nation  permits  to  citizens  of  the 
United  States  of  America  the  benefit  of  copyright 
on  substantially  the  same  basis  as  to  its  own  citizens ; 
or  when  such  foreign  state  or  nation  is  a  party  to 
an  international  agreement  which  provides  for  reci- 
procity in  the  granting  of  copyright,  by  the  terms  of 
which  agreement  the  United  States  of  America  may 
at  its  pleasure  become  a  party  to  such  agreement. 
The  existence  of  either  of  the  conditions  aforesaid 
shall  be  determined  by  the  President  of  the  United 
States,  by  proclamation  made  from  time  to  time  as 
the  purposes  of  this  act  may  require. 

Directions  for  Securing  Copyrights. 

Under  the  Revised  Acts  of  Congress,  including  the  Provisions  for 
Foreign  Copyright,  by  Act  of  March  3,  1891. 

I.  A  printed  copy  of  the  title  of  the  book,  map, 
chart,  dramatic  or  musical  composition,  printed  title 
engraving,  cut,  print,  photograph,  or  required. 
chromo,  or  a  description  of  the  painting,  drawing, 
statue,  statuary,  or  model  or  design  for  a  work  of 
the  fine  arts,  for  which  copyright  is  desired,  must  be 
delivered  to  the  Librarian  of  Congress  or  deposited 
in  the  mail,  within  the  United  States,  prepaid,  ad- 
dressed Librarian  of  Congress,  Washington,  D.  C. 
This  may  be  done  on  or  before  day  of  publication 
in  this  or  any  foreign  country. 


14  THE   QUESTION   OF   COPYRIGHT. 

The  printed  title  required  may  be  a  copy  of  the 
title-page  of  such   publications  as  have  title-pages. 
what  style  of      In  other  cases  the  title  must  be  printed ' ex- 
prmt.  pressly  for  copyright  entry,  with  name  of 

claimant  of  copyright.  The  style  of  type  is  imma- 
terial, and  the  print  of  a  typewriter  will  be  accepted. 
But  a  separate  title  is  required  for  each  entry,  and 
each  title  must  be  printed  on  paper  as  large  as  com- 
mercial note.  The  title  of  a  periodical  must  include 
the  date  and  number  ;  and  each  number  of  the  peri- 
odical requires  a  separate  entry  of  copyright. 

Blank  forms  of  application  furnished 

Applications. 

to  applicants. 

2.  The  legal  fee  for  recording  each  copyright  claim 

is  50  cents,  and  for  a  copy  of  this  record 

(or  certificate  of  copyright  under  seal  of 

the  office)  an  additional  fee  of  50  cents  is  required, 

making  $1,  if  certificate  is  wanted,  which  will  be 

mailed  as  soon  as  reached  in  the  records. 

No  money  is  to  be  placed  in  any  package  of  books, 
music,  or  other  publications.  A  bank  check,  to  order, 
avoids  all  risk. 

For  publications  which  are  the  production  of  per- 
sons not  citizens  or  residents  of  the  United  States, 
the  fee  for  recording  title  is  $1,  and  50  cents  addi- 
tional for  a  copy  of  the  record.  Certificates  covering 
more  than  one  entry  in  one  certificate  are  not  issued. 

Bank  checks,  money  orders,  and  currency  only 
taken  for  fees.     No  postage  stamps  received. 

Two  copies  3-  Not  later  than  the  day  of  publi- 

required.  cation  in  this  country  or  abroad,  two 

complete  copies  of  the  best  edition  of  each  book  or 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.     I  5 

other  article  must  be  delivered,  or  deposited  in  the 
mail  within  the  United  States,  addressed  Librarian 
of  Congress,  Washington,  D.  C.  to  perfect  the 
copyright. 

The  freight  or  postage  must  be  prepaid,  or  the 
publications  inclosed  in  parcels  covered  by  printed 
Penalty  Labels,  furnished  by  the  Libra- 

,   .    ,  ,  . , ,  Free  by  mail. 

nan,  in  which  case  they  will  come  FREE 
by  mail  {not  express),  without  limit  of  weight,  ac- 
cording to  rulings  of  the  Post-Office  Department. 
Books  must  be  printed  from  type  set  in  To  be  of  American 
the  United  States,  or  from  plates  made  ™anufacture. 
therefrom  ;  photographs  from  negatives  made  in  the 
United  States  ;  chromos  and  lithographs  from  draw- 
ings on  stone  or  transfers  therefrom  made  in  the 
United  States. 

Without  the  deposit  of  copies  above  required  the 
copyright  is  void,  and  a  penalty  of  $25 
is  incurred.     No  copy  is  required  to  be 
deposited  elsewhere. 

The  law  requires  one  copy  of  each  new  edition, 
wherein   any    substantial   changes   are 

New  editions. 

made,  to  be  deposited  with  the  Libra- 
rian of  Congress. 

4.  No  copyright  is  valid  unless  notice  is  given  by 
inserting;  in  every  copy  published,  on    Notice  of  copy- 

0  J  x  J      x  m  right  to  be  given 

the  title-page  or  the  page  following,  if  by  imprint. 
it  be  a  book ;  or  if  a  map,  chart,  musical  composi- 
tion, print,  cut,  engraving,  photograph,  painting, 
drawing,  chromo,  statue,  statuary,  or  model  or  de- 
signs intended  to  be  perfected  as  a  work  of  the  fine 
arts,  by  inscribing  upon  some  portion  thereof,  or  on 


1 6  THE   QUESTION   OF   COPYRIGHT. 

the  substance  on  which  the  same  is  mounted,  the 
following  words,  viz.  :  "Entered  according  to  act  of 

claimant's  name     Congress,  in  the  year ,  by ,  in 

to  be  printed.  fjie  office  of  the  Librarian  of  Congress, 
at  Washington"  or  at  the  option  of  the  person  enter- 
ing the   copyright,   the    words  :    "  Copyright,    18 — , 

by r 

The  law  imposes  a  penalty  of  $100  upon  any  per- 
Penaity  for  false  son  wno  has  not  obtained  copyright 
claim-  who  shall   insert  the  notice,  "Entered 

according  to  act  of  Congress,"  or  "Copyright"  or 
words  of  the  same  import,  in  or  upon  any  book  or 
other  article. 

5.  The  copyright  law  secures  to  authors  and  their 
Translations  and  assigns  the  exclusive  right  to  translate 
dramas.  or  ^-0  dramatize  any  of  their  works ;  no 
notice  or  record  is  required  to  enforce  this  right. 

6.  The  original  term  of  a  copyright  runs  for 
Duration  of  copy-  twenty-eight  years.  Within  six  months 
risht-  before  the  end  of  that  time,  the  author 
or  designer,  or  his  widow  or  children,  may  secure 
a  renewal  for  the  further  term  of  fourteen  years, 
making  forty-two   years   in    all.      Applications   for 

renewal   must   be    accompanied    by   a 

Renewals.  .  ...  .  .     .  ... 

printed  title  and  fee ;  and  by  explicit 
statement  of  ownership,  in  the  case  of  the  author  or 
of  relationship,  in  the  case  of  his  heirs,  and  must 
state  definitely  the  date  and  place  of  entry  of  the 
original  copyright.  Within  two  months  from  date 
of  renewal  the  record  thereof  must  be  advertised  in 
an  American  newspaper  for  four  weeks. 

7.  The  time  of  publication  is  not  limited  by  any 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.     1 7 

law  or  regulation,  but  the  courts  have  held  that  it 
should  take  place  "  within  a  reasonable  time."     A 
copyright  may  be  secured   for  a   pro-    Time  of  pubii- 
jected  as  well  as  for  a  completed  work.    cation- 
But  the    law  provides  for  no  caveat,    or  notice  of 
interference — only  for  actual  entry  of  title. 

8.  Copyrights  arc   assignable  by   any  instrument 
of    writing.      Such    assignment    to   be 

.  Assignments. 

valid,  is  to  be  recorded  in  the  office  of 
the  Librarian  of  Congress  within   sixty  days  from 
execution.     The  fee  for  this  record  and  certificate  is 
one  dollar,  and  for  a  certified  copy  of  any  record  of 
assignment  one  dollar. 

9.  A  copy  of  the  record  (or  duplicate  certificate) 
of    any    copyright    entry   will    be    fur-    Copies  or  dupii- 

.,,  ,  ir,i  rr  iii  cate  certificates. 

nished,  under  seal  of  the  office,  at  the 
rate  of  fifty  cents  each. 

10.  In  the  case  of  books  published  in  more  than 
one  volume,  or  of  periodicals  published  serials  or  separate 
in  numbers,  or  of  engravings,  photo-  Publicatl0ns- 
graphs,  or  other  articles  published  with  variations,  a 
copyright  must  be  entered  for  each  volume  or  part 
of  a  book,  or  number  of  a  periodical,  or  variety,  as 
to  style,  title,  or  inscription,  of  any  other  article. 
To  complete  the  copyright  on  a  book  published  seri- 
ally in  a  periodical,  two  copies  of  each  serial  part  as 
well  as  of  the  completed  work  (if  published  sepa- 
rately), should  be  deposited. 

11.  To  secure  copyright  for  a  painting,  statue,  or 

model  or  design   intended  to   be    per-    copyright  for 

fected  as  a  work  of  the  fine  arts,  a  defi-    workso£  art- 

nite  title  and  description  must  accompany  the  appli- 
2 


1 8  THE   QUESTION   OF   COPYRIGHT. 

cation  for  copyright,  and  a  mounted  photograph  of 
the  same,  as  large  as  "  cabinet  size,"  mailed  to  the 
Librarian  of  Congress  not  later  than  the  day  of  pub- 
lication of  the  work  or  design. 

The  fine  arts,  for  copyright  purposes,  include  only 
painting  and  sculpture,  and  articles  of 

Fine  arts.  . 

merely  ornamental  and  decorative  art 
should  be  sent  to  the  Patent  Office,  as  subjects  for 
Design  Patents. 

12.  Copyrights  can  not  be  granted  upon  trade- 
No  labels  or  marks,  nor  upon  names  of  companies, 
names  copyright,  libraries,  or  articles,  nor  upon  an  idea 
or  device,  nor  upon  prints  or  labels  intended  to  be 
used  for  any  article  of  manufacture.  If  protection 
for  such  names  or  labels  is  desired,  application  must 
be  made  to  the  Patent  Office,  where  they  are  regis- 
tered, if  admitted,  at  a  fee  of  $6  for  labels,  and  $25 
for  trade-marks. 

13.  The  provisions  as  to  copyright  entry  in  the 
Foreign  or  inter-  United  States  by  foreign  authors,  etc., 
national  copyright,  ^y  act  0f  Congress  approved  March  3, 

1 89 1  (which  took  effect  July  1,  1 891),  are  the  same 
as  the  foregoing,  except  as  to  productions  of  persons 
not  citizens  or  residents,  which  must 
cover  return  postages,  and  are  $1  for 
entry,  or  $1.50  for  entry  and  certificate  of  entry 
(equivalent  to  4s.  $d.  or  6s.  yd.).  All  publications 
must  be  delivered  to  the  Librarian  at  Washington 
free  of  charge.  The  free  penalty  labels  can  not  be 
used  outside  of  the  United  States. 

The  right  of  citizens  or  subjects  of  a  foreign  na- 
tion to  copyright  in  the  United  States  extends  by 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.     1 9 

Presidential  proclamations  to  Great  Britain,  France, 
Germany,  Italy,  Spain,  Portugal,  Belgium,  Denmark, 
and  Switzerland  ;  and  Americans  can  secure  copy- 
right in  those  countries.  For  this,  direct  arrange- 
ments must  be  made  abroad.  The  Librarian  of 
Congress  can  not  take  charge  of  any  foreign  copy- 
right business.1 

14.  Every  applicant  for  a  copyright  should  state 
distinctly  the  full  name  and  residence  Full  name  of  pro- 
of the  claimant,  whether  book  or  other  prietor required, 
publication,  and  whether  the  right  is  claimed  as 
author,  designer,  or  proprietor.  No  affidavit  or  wit- 
ness to  the  application  is  required. 

Office  of  the  Librarian  of  Congress, 
Washington,  1895. 

Foreign  States  with  which  the  United  States  is 
in  Copyright  Relations. 

The  provisions  of  the  Act  of  1891  having  to  do 
with  International  Copyright,  are  (January,  1896)  in 
force  with  the  following  States : 


Belgium, 
France, 
Great  Britain, 
Switzerland, 


By  Proclamation  of  the  Presi- 
dent, July  4,  1 89 1. 


1  American  authors,  artists,  and  composers  who  desire  to  secure 
for  their  productions  the  protection  of  copyright  in  the  States  with 
which  the  United  States  has  entered  into  copyright  relations,  must 
fulfil  the  requirements  of  the  Statutes  of  those  States.  The  pro- 
visions of  these  Statutes  are  given  in  a  later  chapter  of  this  volume. 
— Editor. 


20  THE   QUESTION   OF   COPYRIGHT. 

Germany,  by  Treaty,  March  8,  1892. 
Italy,  by  Proclamation,  Oct.  31,  1892. 
Denmark,  by  Proclamation,  May  8,  1893. 
Portugal,  by  Proclamation,  July  20,  1895. 
Spain,  by  Proclamation,  July  15,  1895. 
Mexico,  by  Proclamation,  Feb.  27,  1896. 

Amendments  to  the   Copyright  Act    Proposed 
Since  July,  1891. 

1.  The  Hicks  Bill. —  In  September,  1894,  an 
amendment  to  the  Copyright  Act  was  introduced 
by  Representative  Hicks,  of  Pennsylvania,  which 
had  for  its  purpose  the  application  of  the  manufac- 
turing requirement  to  engravings  and  etchings; 
under  the  Hicks  provision,  art  productions  of  this 
class  were  to  be  "  printed  from  plates  engraved  or 
etched  within  the  limits  of  the  United  States."  A 
second  division  of  the  Hicks  Bill  excepted  from  the 
works  the  contents  of  which  were  to  be  protected 
by  copyright  "  daily  or  weekly  newspapers  devoted 
in  whole  or  in  part  to  the  news  of  the  day." 

The  purpose  of  the  first  provision  was  stated  to 
be  the  protection  of  newspapers  against  dispropor- 
tioned  damages  in  connection  with  the  reproduction 
of  photographs  or  of  popular  works  of  art,  which 
were  the  work  of  alien  designers.  Its  results  would 
have  been  the  undermining  of  copyright  in  foreign 
works  of  art,  the  protection  of  which  constituted 
practically  the  only  advantage  secured  by  the  states 
of  Europe  (other  than  England)  under  the  American 
Act  of  1 89 1.  The  alleged  purpose  of  the  second 
provision  (which  was  presented  at  the  instance  of 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.     21 

the  smaller  papers)  was  to  prevent  what  they  called 
"  a  monopoly  of  news."  The  result  would  have 
been  to  destroy  the  copyright  property  in  any  liter- 
ary or  art  productions  published  not  only  in  the 
daily  papers,  but  in  such  journals  as  Harper  s 
Weekly  or  Frank  Leslie's,  which  are  in  part  devoted 
to  "  news  of  the  da3'."  Strong  protests  were  made 
against  the  bill  by  European  artists  and  art  publish- 
ers, and  by  the  publishers  of  literary  illustrated 
weeklies  and  their  contributors.  Concerted  action 
was  taken,  on  behalf  of  all  the  copyright  interests 
assailed  by  the  Authors'  and  Publishers'  Copyright 
Leagues,  and  the  bill  was  killed  in  Committee. 

2.  The  Covert  Amendment. — In  January,  1895, 
Representative  Covert  of  New  York,  introduced  a 
bill  which  had  for  its  purpose  the  relief  of  the  news- 
papers from  excessive  penalties  in  connection  with 
the  infringement  of  art  designs,  photographs,  etc. 
This  bill  as  first  worded  would  have  constituted  a 
serious  impairment  of  the  protection  of  copyright 
property. 

After  consultation  between  the  representatives  of 
the  Authors'  and  Publishers'  Copyright  Leagues  and 
those  of  the  newspaper  publishers,  the  Covert  amend- 
ment was  modified.  The  original  draft  provided 
that  the  total  sum  to  be  "  recovered  for  any  one  in- 
fringement should  not  exceed  double  the  value  of 
the  printing,  drawing,  object  or  thing  infringed 
upon,  copied,  issued,  or  edited  in  violation  of  law." 
As  finally  worded  the  amendment  read  : 

"  Provided,  however,  that  in  the  case  of  any  such 


22  THE   QUESTION   OF   COPYRIGHT. 

infringement  of  the  copyright  of  a  photograph  made 
from  an  object  not  a  work  of  the  fine  arts,  the  sum 
to  be  recovered  in  any  action  brought  under  the 
provisions  of  this  section  shall  be  not  less  than  $100, 
nor  more  than  $5000,  and  Provided  further,  In  case 
of  any  such  infringement  of  the  copyright  of  a  print- 
ing, drawing,  statue,  engraving,  etching,  print,  or 
model,  or  design  not  a  work  of  the  fine  arts,  the  sum 
to  be  recovered  in  any  action  brought  through  the 
provisions  of  this  section  shall  not  be  less  than  $250 
and  not  more  than  $10,000." 

The  act  was  passed  in  March,  1895,  becoming  part 
of  the  copyright  law,  and  constituting  the  first 
amendment  to  the  international  copyright  provi- 
sions. 

3.  The  Cummings*  Amendment,  in  re  Stage-right. 
— In  February,  1896,  Mr.  Amos  Cummings,  of  New 
York,  introduced  in  the  House  of  Representatives  a 
bill  which  had  for  its  purpose  the  more  thorough 
protection  of  the  rights  of  dramatic  authors.  These 
authors  and  their  assigns,  the  managers  who  are  in- 
terested with  them  in  the  copyright  protection  of 
plays,  had  for  some  years  found  occasion  to  complain 
of  the  inadequacy  of  the  protection  accorded  to 
their  property  under  the  existing  methods  of  the 
Federal  Courts.  Under  the  existing  law,  an  injunc- 
tion granted  by  one  Federal  Court  is  preventive  only 
within  the  judicial  circuit  of  that  Court.  There  are 
within  the  territory  of  the  United  States  nine  of 
these  Judicial  Circuits.  If  an  injunction  be  granted, 
for  instance,  by  the  United  States  Court  in  the  City 
of  New  York,  restraining  the  piratical  performance 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.    23 

of  a  play,  such  injunction  has  force  only  within  the 
judicial  circuit  of  New  York  City.  The  pirate  may 
produce  the  play  in  Philadelphia,  Boston,  or  any- 
where else  outside  of  that  circuit,  and  the  only  way 
to  reach  him  is  to  secure  another  injunction  from  the 
court  of  the  circuit  within  which  the  latter  injunc- 
tion is  accorded.  Even  then,  the  offender  is  still  at 
liberty  to  repeat  his  operations  in  a  third  circuit, 
and  so  on  for  the  entire  series  of  nine.  The  text  of 
the  Cummings'  Bill,  which  will  probably  become  law 
by  the  time  the  printing  of  this  volume  is  completed, 
is  as  follows  : 

A  Bill  to  Amend  Title  Sixty,  Chapter  Three,  of  the  Revised  Statutes, 
relating  to  copyrights. 

Be  it  enacted  oy  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  section  forty- 
nine  hundred  and  sixty-six  of  the  Revised  Statutes  be,  and  the  same 
is  hereby,  amended  so  as  to  read  as  follows  : 

Sec.  4966.  Any  person  publicly  performing  or  representing  any 
dramatic  or  operatic  composition  for  which  a  copyright  has  been  ob- 
tained, without  the  consent  of  the  proprietor  of  said  dramatic  or 
operatic  composition  or  of  his  heirs  or  assigns,  shall  be  liable  for  dam- 
ages therefor,  such  damages  in  all  cases  to  be  assessed  at  such  sum, 
not  less  than  one  hundred  dollars  for  the  first  and  fifty  dollars  for 
every  subsequent  performance,  as  to  the  court  shall  appear  to  be  just  ; 
and  if  it  be  determined  that  such  unlawful  performing  and  represen- 
tation was  wilful  and  for  profit,  in  addition  thereto,  such  person  or 
persons  shall  be  guilty  of  a  misdemeanor  and  liable  to  imprisonment 
for  a  period  not  exceeding  one  year.  Any  injunction  that  may  be 
granted  by  any  circuit  court  of  the  United  States,  or  by  any  judge 
thereof,  restraining  and  enjoining  the  performance  or  representation 
of  any  such  dramatic  or  operatic  composition  may  be  served  on  the 
parties  against  whom  such  injunction  may  be  granted  anywhere  in 
the  United  States,  and  shall  be  operative  and  may  be  enforced  by 
proceedings  to  punish  for  contempt  or  otherwise  by  any  other  circuit 


24  THE   QUESTION   OF   COPYRIGHT. 

court  or  judge  in  the  United  States  :  but  the  defendants  in  said 
action,  or  any  or  either  of  them,  may  make  a  motion  in  any  other 
circuit  in  which  he  or  they  may  be  engaged  in  performing  or  repre- 
senting said  dramatic  or  operatic  composition  to  dissolve  or  set  aside 
the  said  injunction  upon  such  reasonable  notice  to  the  plaintiff  as  the 
circuit  court  or  the  judge  before  whom  said  motion  shall  be  made 
shall  deem  proper  ;  service  of  said  motion  to  be  made  on  the  plaintiff 
in  person  or  on  his  attorneys  in  the  action.  The  circuit  courts  or 
judges  thereof  shall  have  jurisdiction  to  enforce  said  injunction  and 
to  hear  and  determine  a  motion  to  dissolve  the  same,  as  herein  pro- 
vided, as  fully  as  if  the  action  were  pending  or  brought  in  the  circuit 
in  which  said  motion  is  made. 

The  clerk  of  the  court,  or  judge  granting  the  injunction,  shall, 
when  required  so  to  do  by  the  court  hearing  the  application  to  dis- 
solve or  enforce  said  injunction,  transmit  without  delay  to  said  court 
a  certified  copy  of  all  the  papers  on  which  the  said  injunction  was 
granted  that  are  on  file  in  his  office. 


4.  The  Treloar  Bill. — In  February,  1896,  Mr. 
Treloar  of  Missouri  introduced  in  the  House  of 
Representatives  a  Bill  the  general  purpose  of  which 
was  specified  as  the  "  revision  of  the  copyright  law." 

Mr.  Treloar  had  incorporated  in  his  measure  (with 
some  changes)  the  plan  for  the  organization  of  a 
Bureau  of  Copyrights  which  should  be  distinct  from 
the  Library  of  Congress.  He  had  also  included  the 
substance  of  The  Cummings'  Bill  then  pending  in 
the  House,  the  purpose  of  which  was  to  secure  a 
more  adequate  protection  for  the  rights  of  dramatic 
authors.  The  original  features  of  his  Bill  can  be 
summarized  as  follows  : 

1.  The  extension  of  the  first  term  of  copyright 
from  twenty-eight  to  forty  years  and  of  the  second 
term  (to  be  secured  by  the  author  if  living  and 
otherwise  by  his  widow  or  children)  from  fourteen 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.     25 

to  twenty  years,  making  the  total  term  sixty  years 
instead  of  forty-two  ;  2.  The  restriction  to  citizens 
of  the  United  States  of  the  privilege  of  securing 
copyright,  (which  privilege,  under  all  acts  prior  to 
that  of  1 891,  had  been  conceded  to  residents  without 
regard  to  citizenship,  and  which,  under  the  Act  of 
1 891,  had  been  extended  to  citizens  of  other  coun- 
tries whose  government  extended  similar  copyright 
privileges  to  American  citizens)  ;  3.  The  addition 
to  the  list  of  articles  which,  in  order  to  secure  the 
privileges  of  copyright  in  the  United  States,  must  be 
wholly  manufactured  within  the  limits  of  the  United 
States,  of  musical  compositions  and  of  reproductions 
of  works  of  art  in  the  form  of  engravings,  cuts,  or 
prints ;  4.  The  limitation  to  $5000  of  the  total 
penalty  to  be  collected  for  the  infringement  of  the 
copyright  of  a  literary  production. 

The  clause  in  regard  to  the  instituting  of  a  Bureau 
of  Copyrights,  provided  for  a  chief  of  such  Bureau 
to  be  entitled  a  commissioner  (in  the  Bankhead  and 
Morrill  Bills  he  was  to  be  styled  register)  and  for  a 
staff  of  no  less  than  thirty-eight  assistants.  (The 
Bankhead  and  Morrill  Bills  made  provision  for  but 
three  assistants.)  The  total  expense  of  the  Bureau 
on  the  scheme  proposed  would  amount  to  not  less 
than  $50,000,  while  the  Bankhead  and  Morrill  Bills 
estimated  that  the  annual  cost  of  such  Bureau  need 
not  exceed  $7500.  The  Treloar  estimate  was  doubt- 
less very  much  in  excess  of  the  actual  business 
requirements  of  such  a  Bureau,  while  the  Bank- 
head  provision  was  decidedly  inadequate.  The  an- 
nual receipts  from  the  copyright  fees  amounted  (in 


26  THE   QUESTION   OF   COPYRIGHT. 

1895)  to  something  over  $35,000.  It  was  the  calcu- 
lation of  good  judges  that  the  work  of  the  copyright 
Bureau  ought  to  be  performed  efficiently  for  a 
sum  not  exceeding  $20,000,  with  provision  for  such 
gradual  increase  of  the  clerical  force  as  the  normal 
development  of  the  business  would  necessitate. 

The  Bill  was  referred  in  due  course  to  the  House 
Committee  on  Patents.  The  Authors'  and  Pub- 
lishers' American  Leagues  promptly  expressed  their 
entire  disapproval  of  its  chief  provisions.  In  the 
resolutions  adopted  in  these  Leagues,  it  was  pointed 
out  that  the  Bill  would,  if  it  became  law,  bring  about 
the  revocation  of  the  copyright  granted  to  foreign 
producers  of  works  of  art,  and  would  add  very  ma- 
terially to  the  difficulties  in  the  way  of  securing  copy- 
right for  foreign  works  of  literature,  if  it  did  not 
entirely  nullify  the  copyright  privileges  of  foreign 
authors.  It  was  further  contended  that  the  limita- 
tion to  $5000  of  the  damages  to  be  secured  for  the 
infringement  of  literary  property,  a  penalty  which 
had  heretofore  been  left  proportionate  to  the  actual 
extent  of  the  damage  caused,  was  inequitable  and 
was  contrary  to  all  precedents  of  existing  copy- 
right law. 

The  unnecessary  outlay  planned  for  the  mainte- 
nance of  the  Bureau  of  Copyright  constituted  a  dis- 
tinctive though  less  important  objection  to  the  Bill. 
The  extention  of  the  term  of  copyright,  while  de- 
sirable in  itself,  was  not  to  be  considered  as  an  offset 
to  the  serious  defects  above  specified.  It  was,  further, 
a  subject  which  was  not  to  be  passed  upon  hastily, 
but  which  called  for  mature  consideration  in  connec- 


LAW  OF  COPYRIGHT  IN  THE  UNITED  STATES.     2J 

tion  with  the  experience  of  foreign  States  and  with 
the  conclusions  arrived  at  in  these  States. 

At  the  time  this  chapter  is  going  through  the 
press,  the  Treloar  Bill  is  still  under  consideration 
in  Committee,  but  there  is  supposed  to  be  no  pos- 
sible prospect  of  its  securing  a  majority  in  either  the 
House  or  the  Senate,  while  in  the  event  of  the 
measure  being  passed  by  Congress,  it  is  assumed 
that  it  will  certainly  meet  with  the  disapproval  of 
the  Executive. 


II. 

SUMMARY    OF    COPYRIGHT    LEGISLA- 
TION  IN  THE  UNITED   STATES. 

By  R.  R.  Bowker. 

The  Constitution  of  the  United  States  authorized 
Congress  "to  promote  the  progress  of  science  and 
useful  arts  by  securing  for  limited  times,  to  authors 
and  inventors,  the  exclusive  right  to  their  respect- 
ive writings  and  discoveries."  Previous  to  its  adop- 
tion, in  1787,  the  nation  had  no  power  to  act,  but 
on  Madison's  motion,  Congress,  in  May,  1783,  rec- 
ommended the  States  to  pass  acts  securing  copy- 
right for  fourteen  years.  Connecticut,  in  January, 
1783,  and  Massachusetts,  in  March,  1783,  had  al- 
ready provided  copyright  for  twenty-one  years. 
Virginia,  in  1785,  New  York  and  New  Jersey,  in 
1786,  also  passed  copyright  acts,  and  other  States 
were  considering  them — thanks  to  the  vigorous 
copyright  crusade  of  Noah  Webster,  who  travelled 
from  capital  to  capital — when  the  United  States 
Statute  of  1790  made  them  unnecessary.  This  act- 
followed  the  precedent  of  the  English  act  of  1710, 
and  gave  to  authors  who  were  citizens  or  residents, 
their  heirs  and  assigns,  copyrights  in  books,  maps, 
and  charts  for  fourteen  years,  with  renewal  for  four- 
teen years  more,  if  the  author  were  living  at  expi- 


COPYRIGHT   IN   THE   UNITED   STATES.  29 

ration  of  the  first  term.  A  printed  title  must  be 
deposited  before  publication  in  the  clerk's  office  of 
the  local  United  States  District  Court  ;  notice  must 
be  printed  four  times  in  a  newspaper  within  two 
months  after  publication  ;  a  copy  must  be  deposited 
with  the  United  States  Secretary  of  State  within 
six  months  after  publication ;  the  penalties  were 
forfeiture  and  a  fine  of  fifty  cents  for  each  sheet 
found,  half  to  go  to  the  copyright  owner,  half  to 
the  United  States ;  a  remedy  was  provided  against 
unauthorized  publication  of  manuscripts. 

This  original  and  fundamental  act  was  followed 
by  others — in  1802,  requiring  copyright  record  to 
be  printed  on  or  next  the  title-page,  and  including 
designs,  engravings,  and  etchings  ;  in  18 19,  giving 
United  States  Circuit  Courts  original  jurisdiction 
in  copyright  cases;  in  1831  (a  consolidation  of  pre- 
vious acts),  including  musical  compositions,  extend- 
ing the  term  to  twenty-eight  years,  with  renewal 
for  fourteen  years  to  author,  widow,  or  children, 
doing  away  with  the  newspaper  notice  except  for 
renewals,  and  providing  for  the  deposit  of  a  copy 
with  the  district  clerk  (for  transmission  to  the  Sec- 
retary of  State)  within  three  months  after  pub- 
lication ;  in  1834,  requiring  record  of  assignment  in 
the  court  of  original  entry  ;  in  1846  (the  act  estab- 
lishing the  Smithsonian  Institution),  requiring  one 
copy  to  be  delivered  to  that,  and  one  to  the  Library 
of  Congress  ;  in  1856,  securing  to  dramatists  the 
right  of  performance;  in  1859,  repealing  the  pro- 
vision of  1846  for  the  deposit  of  copies,  and  making 
the  Interior  Department  instead  of  the  State  De- 


30  THE   QUESTION   OF   COPYRIGHT. 

partment  the  copyright  custodian  ;  in  1861,  provid- 
ing for  appeal  in  all  copyright  cases  to  the  Supreme 
Court  ;  in  1865,  one  act  again  requiring  deposit  with 
the  Library  of  Congress,  within  one  month  from  publi- 
cation, another  including  photographs  and  negatives ; 
in  1867,  providing  $25  penalty  for  failure  to  deposit. 
This  makes  twelve  acts  bearing  on  copyright  up  to 
1870,  when  a  general  act  took  the  place  of  all,  in- 
cluding "  paintings,  drawings,  chromos,  statues,  statu- 
ary, and  models  or  designs  intended  to  be  perfected 
as  works  of  the  fine  arts."  This  did  away  with  the 
local  District  Court  system  of  registry,  and  made  the 
Librarian  of  Congress  the  copyright  officer,  with 
whom  printed  title  must  be  filed  before,  and  two 
copies  deposited  within  ten  days  after,  publication. 
In  1873-74  the  copyright  act  was  included  in  the  Re- 
vised Statutes  as  Sections  4948  to  4971  (also  see 
§§  629  and  699),  and  in  1874  an  amendatory  act  made 
legal  a  short  form  of  record,  "  Copyright,  18 — ,  by 
A.  B.,"  and  relegated  labels  to  the  Patent  Office. 

The  act  of  1790  received  an  interpretation,  in 
1834,  in  the  case  of  Wheaton  vs.  Peters  (rival  law 
reports),  at  the  bar  of  the  United  States  Supreme 
Court,  which  placed  copyright  in  the  United  States 
exactly  in  the  status  it  held  in  England  after  the 
decision  of  the  House  of  Lords  in  1774.  The  court 
referred  directly  to  that  decision  as  the  ruling  prec- 
edent, and  declared  that  by  the  statute  of  1790 
Congress  did  not  affirm  an  existing  right,  but  created 
a  right.  It  stated  also  that  there  was  no  common 
law  of  the  United  States,  and  that  (English)  com- 
mon law  as  to  copyright  had  not  been  adopted  in 


COPYRIGHT   IN   THE   UNITED   STATES.  3  I 

Pennsylvania,  where  the  case  arose.  So  late  as 
1880,  in  Putnam  vs.  Pollard,  claim  was  made  that 
this  ruling  decision  did  not  apply  in  New  York, 
which,  in  its  statute  of  1786,  expressly  "provided, 
that  nothing  in  this  act  shall  extend  to,  affect,  prej- 
udice, or  confirm  the  rights  which  any  person  may 
have  to  the  printing  or  publishing  of  any  books  or 
pamphlets  at  common  law,  in  cases  not  mentioned 
in  this  act."  But  the  New  York  Supreme  Court 
decided  that  the  precedent  of  Wheaton  vs.  Peters 
nevertheless  held. 

As  in  the  English  case  of  Donaldsons  vs.  Beckett, 
the  decision  in  the  American  ruling  case  came  from 
a  divided  court.  The  opinion  was  handed  down  by 
Justice  McLean,  three  other  judges  agreeing,  Jus- 
tices Thompson  and  Baldwin  dissenting,  a  seventh 
judge  being  absent.  The  opinions  of  the  dissenting 
judges  (see  Drone,  p.  43  ct  seq.)  constitute  one  of 
the  strongest  statements  ever  made  of  natural  rights 
in  literary  property,  in  opposition  to  the  ruling  that 
the  right  is  solely  the  creature  of  the  statute.  "  An 
author's  right,"  says  Justice  Thompson,  "ought  to 
be  esteemed  an  inviolable  right  established  in  sound 
reason  and  abstract  morality." 

The  application  of  copyright  law,  unlike  that  re- 
garding patents,  is  solely  a  question  of  the  courts. 
The  Librarian  of  Congress  is  simply  an  officer  of 
record,  and  makes  no  decisions,  as  is  well  stated  in 
his  general  circular  in  reply  to  queries : 

"  I  have  to  advise  you  that  no  question  concerning  the  validity  of 
a  copyright  can  be  determined  under  our  laws  by  any  other  authority 
than  a  United  States  Court.     This  office  has  no  discretion  or  author- 


32  THE   QUESTION  OF   COPYRIGHT. 

ity  to  refuse  any  application  for  a  copyright  coming  within  the  pro- 
visions of  the  law,  and  all  questions  as  to  priority  or  infringement 
are  purely  judicial  questions,  with  which  the  undersigned  has  nothing 
to  do. 

"  A  certificate  of  copyright  is  prima  facie  evidence  of  an  exclusive 
title,  and  is  highly  valuable  as  the  foundation  of  a  legal  claim  to  the 
property  involved  in  the  publication.  As  no  claim  to  exclusive 
property  in  the  contents  of  a  printed  book  or  other  article  can  be 
enforced  under  the  common  law,  Congress  has  very  properly  pro- 
vided the  guarantees  of  such  property  which  are  embodied  in  the 
'  Act  to  revise,  consolidate,  and  amend  the  statutes  relating  to  patents 
and  copyrights,'  approved  July  S,  1870.  If  you  obtain  a  copyright 
under  the  provisions  of  this  act,  you  can  claim  damages  from  any 
person  infringing  your  rights  by  printing  or  selling  the  same  article  ; 
but  upon  all  questions  as  to  what  constitutes  an  infringement,  or 
what  measure  of  damages  can  be  recovered,  all  parties  are  left  to 
their  proper  remedy  in  the  courts  of  the  United  States." 

The  many  perplexities  that  arise  under  our  com- 
plicated and  unsatisfactory  law,  as  it  stands  at  pres- 
ent, suggest  the  need  here,  as  in  England,  of  a 
thorough  remodeling  of  our  copyright  system. 

December,   1885. 


III. 

HENRY   CLAYS    REPORT    IN    FAVOR   OF 
INTERNATIONAL   COPYRIGHT. 

During  the  second  session  of  the  Twenty-fourth 
Congress,  on  February  16,  1837,  Henry  Clay  in  the 
Senate  made  the  following  report,  submitted  with 
Senate  bill  No.  223  : 

The  select  committee  to  which  was  referred  the 
address  of  certain  British,  and  the  petition  of 
certain  American,  authors,  has,  according  to 
order,  had  the  same  under  consideration,  and 
begs  leave  now  to  report : 

1.  That,  by  the  act  of  Congress  of  1831,  being  the 
law  now  in  force  regulating  copyrights,  the  benefits 
of  the  act  are  restricted  to  citizens  or  residents  of 
the  United  States;  so  that  no  foreigner,  residing 
abroad,  can  secure  a  copyright  in  the  United  States 
for  any  work  of  which  he  is  the  author,  however 
important  or  valuable  it  may  be.  The  object  of  the 
address  and  petition,  therefore,  is  to  remove  this 
restriction  as  to  British  authors,  and  to  allow  them 
to  enjoy  the  benefits  of  our  law. 

2.  That  authors  and  inventors  have,  according  to 
the  practice  among  civilized  nations,  a  property  in 
the  respective  productions  of  their  genius  is  incon- 
testable ;  and  that  this  property  should  be  protected 

3 


34  THE   QUESTION   OF   COPYRIGHT. 

as  effectually  as  any  other  property  is,  by  law,  fol- 
lows as  a  legitimate  consequence.  Authors  and 
inventors  are  among  the  greatest  benefactors  of 
mankind.  They  are  often  dependent,  exclusively, 
upon  their  own  mental  labors  for  the  means  of  sub- 
sistence;  and  are  frequently,  from  the  nature  of 
their  pursuits,  or  the  constitutions  of  their  minds, 
incapable  of  applying  that  provident  care  to  worldly 
affairs  which  other  classes  of  society  are  in  the  habit 
of  bestowing.  These  considerations  give  additional 
strength  to  their  just  title  to  the  protection  of  the 
law. 

3.  It  being  established  that  literary  property  is 
entitled  to  legal  protection,  it  results  that  this  pro- 
tection ought  to  be  afforded  wherever  the  property 
is  situated.  A  British  merchant  brings  or  trans- 
mits to  the  United  States  a  bale  of  merchandise, 
and  the  moment  it  comes  within  the  jurisdiction  of 
our  laws,  they  throw  around  it  effectual  security. 
But  if  the  work  of  a  British  author  is  brought  to  the 
United  States,  it  may  be  appropriated  by  any  resi- 
dent here,  and  republished  without  any  compensa- 
tion whatever  being  made  to  the  author.  We 
should  be  all  shocked  if  the  law  tolerated  the  least 
invasion  of  the  rights  of  property  in  the  case  of  the 
merchandise,  whilst  those  which  justly  belong  to  the 
works  of  authors  are  exposed  to  daily  violation, 
without  the  possibility  of  their  invoking  the  aid  of 
the  laws. 

4.  The  committee  thinks  that  this  distinction  in 
the  condition  of  the  two  descriptions  of  property  is 
not  just,  and  that  it  ought  to  be  remedied  by  some 


HENRY   CLAY'S   REPORT.  35 

safe  and  cautious  amendment  of  the  law.  Already 
the  principle  has  been  adopted,  in  the  patent  laws, 
of  extending  their  benefits  to  foreign  inventions  or 
improvements.  It  is  but  carrying  out  the  same 
principle  to  extend  the  benefits  of  our  copyright 
laws  to  foreign  authors.  In  relation  to  the  subjects 
of  Great  Britain  and  France,  it  will  be  but  a  measure 
of  reciprocal  justice;  for,  in  both  of  those  countries, 
our  authors  may  enjoy  that  protection  of  their  laws 
for  literary  property  which  is  denied  to  their  sub- 
jects here. 

5.  Entertaining  these  views,  the  committee  has 
been  anxious  to  devise  some  measure  which,  without 
too  great  a  disturbance  of  interests,  or  affecting  too 
seriously  arrangements  which  have  grown  out  of  the 
present  state  of  things,  may,  without  hazard,  be 
subjected  to  the  test  of  practical  experience.  Of 
the  works  which  have  heretofore  issued  from  the 
foreign  press,  many  have  been  already  republished 
in  the  United  States ;  others  are  in  a  process  of 
republication,  and  some  probably  have  been  stereo- 
typed. A  copyright  law  which  should  embrace  any 
of  these  works  might  injuriously  affect  American 
publishers,  and  lead  to  collision  and  litigation 
between  them  and  foreign  authors. 

6.  Acting,  then,  on  the  principles  of  prudence  and 
caution,  by  which  the  committee  has  thought  it 
best  to  be  governed,  the  bill  which  the  committee 
intends  proposing  provides  that  the  protection  which 
it  secures  shall  extend  to  those  works  only  which 
shall  be  published  after  its  passage.  It  is  also  lim- 
ited to  the  subjects  of  Great  Britain  and  France; 


36  THE   QUESTION   OF   COPYRIGHT. 

among  other  reasons,  because  the  committee  has 
information  that,  by  their  laws,  American  authors 
can  obtain  there  protection  for  their  productions, 
but  they  have  no  information  that  such  is  the  case 
in  any  other  foreign  country.  But,  in  principle,  the 
committee  perceives  no  objection  to  considering  the 
republic  of  letters  as  one  great  community,  and 
adopting  a  system  of  protection  for  literary  property 
which  should  be  common  to  all  parts  of  it.  The  bill 
also  provides  that  an  American  edition  of  the  foreign 
work,  for  which  an  American  copyright  has  been 
obtained,  shall  be  published  within  reasonable  time. 

7.  If  the  bill  should  pass,  its  operation  in  this 
country  would  be  to  leave  the  public,  without  any 
charge  for  copyright,  in  the  undisturbed  possession 
of  all  scientific  and  literary  works  published  prior 
to  its  passage — in  other  words,  the  great  mass  of 
the  science  and  literature  of  the  world  ;  and  to  en- 
title the  British  and  French  author  only  to  the 
benefit  of  copyright  in  respect  to  works  which  may 
be  published  subsequent  to  the  passage  of  the  law. 

8.  The  committee  cannot  anticipate  any  reason- 
able or  just  objection  to  a  measure  thus  guarded 
and  restricted.  It  may,  indeed,  be  contended  and  it 
is  possible  that  the  new  work,  when  charged  with 
the  expense  incident  to  the  copyright,  may  come 
into  the  hands  of  the  purchaser  at  a  small  advance 
beyond  what  would  be  its  price  if  there  were  no 
such  charge ;  but  this  is  by  no  means  certain.  It 
is,  on  the  contrary,  highly  probable  that,  when  the 
American  publisher  has  adequate  time  to  issue 
carefully  an   edition  of  the  foreign  work,  without 


HENRY   CLAY  S   REPORT.  3/ 

incurring  the  extraordinary  expense  which  he  now 
has  to  sustain  to  make  a  hurried  publication  of  it, 
and  to  guard  himself  against  dangerous  competi- 
tion, he  will  be  able  to  bring  it  into  the  market  as 
cheaply  as  if  the  bill  were  not  to  pass.  But,  if  that 
should  not  prove  to  be  the  case,  and  if  the  Ameri- 
can reader  should  have  to  pay  a  few  cents  to  com- 
pensate the  author  for  composing  a  work  by  which 
he  is  instructed  and  profited,  would  it  not  be  just 
in  itself  ?  Has  any  reader  a  right  to  the  use,  with- 
out remuneration,  of  intellectual  productions  which 
have  not  yet  been  brought  into  existence,  but  lie 
buried  in  the  mind  of  genius?  The  committee 
thinks  not ;  and  its  members  believe  that  no  Amer- 
ican citizen  would  not  feel  it  quite  as  unjust  to 
appropriate  to  himself  their  future  publications, 
without  any  consideration  being  paid  to  their  for- 
eign proprietors,  as  he  would  to  take  the  bale  of 
merchandise,  in  the  case  stated,  without  paying  for 
it ;  and  he  would  the  more  readily  make  this  trifling 
contribution,  when  it  secured  to  him,  instead  of  the 
imperfect  and  slovenly  book  now  often  issued,  a 
neat  and  valuable  work,  worthy  of  preservation. 

9.  With  respect  to  the  constitutional  power  to 
pass  the  proposed  bill,  the  committee  entertains  no 
doubt,  and  Congress,  as  before  stated,  has  acted  on 
it.  The  Constitution  authorizes  Congress  "  to  pro- 
mote the  progress  of  science  and  useful  arts,  by 
securing,  for  limited  times,  to  authors  and  invent- 
ors, the  exclusive  right  to  their  respective  writings 
and  discoveries."  There  is  no  limitation  of  the 
power  to  natives  or  residents  of  this  country.    Such 


38  THE   QUESTION   OF   COPYRIGHT. 

a  limitation  would  have  been  hostile  to  the  object 
of  the  power  granted.  That  object  was  to  promote 
the  progress  of  science  and  useful  arts.  They  be- 
long to  no  particular  country,  but  to  mankind  gen- 
erally. And  it  cannot  be  doubted  that  the  stimulus 
which  it  was  intended  to  give  to  mind  and  genius — 
in  other  words,  the  promotion  of  the  progress  of 
science  and  the  arts — will  be  increased  by  the  mo- 
tives which  the  bill  offers  to  the  inhabitants  of 
Great  Britain  and  France. 

10.  The  committee  concludes  by  asking  leave  to 
introduce  the  bill  which  accompanies  this  report. 

The  following  bill  accompanied  the  report  : 
A  Bill  to   amend    the  act   entitled    "  An  Act  to 
amend  the  several  acts  respecting  copyright." 

Be  it  enacted,  etc.,  That  the  provisions  of  the  act 
to  amend  the  several  acts  respecting  copyrights, 
which  was  passed  on  the  third  day  of  February, 
eighteen  hundred  and  thirty-one,  shall  be  extended 
to,  and  the  benefits  thereof  may  be  enjoyed  by, 
any  subject  or  resident  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  or  of  France,  in  the  same 
manner  as  if  they  were  citizens  or  residents  of  the 
United  States,  upon  depositing  a  printed  copy  of 
the  title  of  the  book,  or  other  work  for  which  a 
copyright  is  desired,  in  the  clerk's  office  of  the 
district  court  of  any  district  in  the  United  States, 
and  complying  with  the  other  requirements  of  the 
said  act :  Provided,  That  this  act  shall  not  apply  to 
any  of  the  works  enumerated  in  the  aforesaid  act, 
which  shall  have  been  etched  or  engraved,  or 
printed  and  published,  prior  to  the  passage  of  this 


HENRY   CLAY'S   RErORT.  39 

act:  And  provided,  also,  That,  unless  an  edition  of 
the  work  for  which  it  is  intended  to  secure  the 
copyright  shall  be  printed  and  published  in  the 
United  States  simultaneously  with  its  issue  in  the 
foreign  country,  or  within  one  month  after  deposit- 
ing as  aforesaid  the  title  thereof  in  the  clerk's  office 
of  the  district  court,  the  benefits  of  copyright  here- 
by allowed  shall  not  be  enjoyed  as  to  such  work. 


IV. 

THE     CONTEST     FOR      INTERNATIONAL 
COPYRIGHT. 

By  Geo.  Haven  Putnam. 

The  history  of  the  movement  in  this  country  in 
behalf  of  International  Copyright  is  still  to  be  writ- 
ten. I  can  present  here  only  a  brief  summary  of  the 
more  noteworthy  of  the  earlier  events  in  this  history, 
accompanied  by  a  more  detailed  statement  of  the 
work  done  during  the  past  three  years  by  the  Copy- 
right Leagues. 

In  1837,  Henry  Clay  presented  to  Congress  a 
petition  of  British  authors  asking  for  American 
copyright.  The  petition  was  referred  to  a  select 
committee,  which  included,  in  addition  to  Clay, 
Webster,  Buchanan,  and  Ewing.  The  report  sub- 
mitted by  the  committee,  favoring  the  petition,  was 
written  by  Clay,  and  is  given  in  this  volume. 

Between  1837,  the  date  of  rendering  his  report, 
and  1842,  the  bill  drafted  by  Clay  on  the  lines  of  his 
report  was  presented  in  the  Senate  five  times.  But 
one  vote  upon  it  was,  however,  secured  in  1840, 
when  it  was  ordered  to  lie  upon  the  table.  This 
bill  was  in  substantial  accord  with  that  just  passed, 
in  requiring  American  manufacture  for  the  books 
securing  copyright.     Between  1837  and  r^42  numer- 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      4  I 

ous  petitions  favoring  International  Copyright  were 
presented  to  Congress,  which  were  noteworthy  as 
containing  the  signatures  of  nearly  all  the  leading 
authors  of  the  country. 

During  those  same  five  years,  1 837-1 842,  the  first 
International  Copyright  conventions  were  being 
framed  between  certain  of  the  European  states,  the 
earliest  being  that  between  Prussia  and  Wurtemberg. 

In  nearly  all  these  earlier  interstate  arrangements, 
it  was  made  a  condition  that  the  work  should  be 
printed  within  the  territory  of  the  country  granting 
the  copyright  protection  to  a  foreign  author. 

In  1838,  after  the  passing  of  the  first  International 
Copyright  Act  in  Great  Britain,  Lord  Palmerston 
invited  the  American  Government  to  co-operate  in 
establishing  a  Copyright  Convention  between  the 
two  countries. 

In  1840,  George  P.  Putnam  issued  in  pamphlet 
form  an  argument  in  behalf  of  International  Copy- 
right, and  in  the  same  year  a  somewhat  similar 
argument  was  printed  by  Cornelius  Matthews. 

In  1843,  Mr.  Putnam  presented  to  Congress  a 
memorial,  drafted  by  himself,  and  signed  by  ninety- 
seven  publishers  and  printers,  in  which  it  was  stated 
that  the  absence  of  an  international  copyright  was 
"  alike  injurious  to  the  business  of  publishing  and 
to  the  best  interests  of  the  people  at  large." 

In  1848,  a  memorial  was  presented  to  Congress, 
signed  by  W.  C.  Bryant,  John  Jay,  George  P.  Put- 
nam, and  others,  asking  for  a  copyright  measure 
very  similar  in  principle  to  that  which  has  just  been 
enacted.     The  memorial  was  ordered  printed,  and 


42  THE   QUESTION   OF   COPYRIGHT. 

was  referred  to  a  select  committee,  from  which  no 
report  was  made. 

In  1853,  Charles  Sumner,  then  Chairman  of  the 
Senate  Committee  on  Foreign  Affairs,  interested 
himself  in  the  subject,  and  reported  to  the  Senate 
a  treaty  drafted  by  Mr.  Everett,  then  Secretary  of 
State,  and  himself,  to  secure  copyright  with  Great 
Britain ;  but  he  was  not  able  to  obtain  a  vote  upon 
it. 

In  1853,  certain  publishing  houses  in  New  York 
including  Charles  Scribner,  D.  Appleton  &  Co., 
C.  S.  Francis,  Mason  Bros.,  and  George  P.  Putnam, 
addressed  a  letter  to  Mr.  Everett,  Secretary  of 
State,  favoring  a  Copyright  Convention  with  Great 
Britain,  and  suggesting  a  copyright  arrangement 
substantially  identical  in  its  conditions  with  that 
secured  under  the  present  Act. 

In  1858,  Mr.  Edward  Jay  Morris  of  Pennsylvania 
introduced  an  International  Copyright  Bill  contain- 
ing similar  provisions,  but  the  bill  was  never  re- 
ported from  committee. 

In  1868,  the  American  Copyright  Association  was 
formed,  at  a  meeting  held  in  response  to  a  circular 
letter,  headed  "  Justice  to  Authors  and  Artists." 
This  letter  was  issued  by  a  committee  composed  of 
George  P.  Putnam,  Dr.  S.  Irenaeus  Prime,  Henry 
Ivison,  and  James  Parton.  Of  this  association 
W.  C.  Bryant  was  made  President,  George  William 
Curtis,  Vice-President,  and  E.  C.  Stedman,  Secre- 
tary. 

In  1867,  Mr.  Samuel  M.  Arnell  of  Tennessee  se- 
cured the  passage  of  a  resolution  in  the  House  of 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      43 

Representatives,  ordering  the  joint  Library  Commit- 
tee to  inquire  into  the  subject  of  International  Copy- 
right and  to  report.  Such  a  report  was  presented 
in  1868  to  the  House  by  Mr.  J.  D.  Baldwin  of  Mas- 
sachusetts, together  with  a  bill  based  upon  a  draft 
submitted  from  the  Copyright  Association  of  New 
York,  by  W.  C.  Bryant  and  George  P.  Putnam,  secur- 
ing copyright  to  foreign  authors,  with  the  condition 
that  their  books  should  be  manufactured  in  this 
country.  The  bill  was  referred  to  the  joint  Com- 
mittee on  the  Library,  from  which  it  never  emerged. 

In  1870,  the  so-called  Clarendon  Treaty  was  pro- 
posed through  Mr.  Thornton,  the  British  Minister 
at  Washington.  The  proposed  treaty  gave  to  the 
authors  and  artists  of  each  country  the  privilege  of 
copyright  in  the  other  by  registering  the  work 
within  three  months  of  the  original  publication. 

In  1871,  Mr.  Cox  introduced  a  Copyright  Bill 
practically  identical  in  its  provisions  with  the  pre- 
vious bill  of  Mr.  Baldwin.  This  was  the  first  bill 
that  reached  the  stage  of  discussion  in  the  Com- 
mittee of  the  Whole. 

In  1872,  a  bill  was  drafted  by  Mr.  W.  H.  Apple- 
ton,  which  provided  that  the  American  edition  of 
the  foreign  work  securing  American  copyright 
should  be  manufactured  in  this  country,  and  that 
the  American  registry  of  copyright  should  be  made 
within  one  month  of  the  date  of  the  original  publi- 
cation. In  the  same  year  the  draft  of  a  bill  was 
submitted  by  Mr.  John  P.  Morton  of  Louisville, 
under  which  any  American  publisher  was  to  be  at 
liberty  to  reprint  the  work  of  a  foreign  author,  on 


44  THE   QUESTION   OF   COPYRIGHT. 

the  condition  of  making  payment  to  such  author 
of  a  ten  per  cent,  royalty.  Later  in  the  year  a 
similar  measure  was  introduced  by  Mr.  Beck  and 
Mr.  Sherman,  providing  that  the  royalty  should  be 
five  per  cent.  Both  these  bills  were  referred  to  the 
Library  Committee. 

In  1873,  Senator  Lot  M.  Morrill  of  Maine  re 
ported,  on  behalf  of  the  Library  Committee,  ad- 
versely to  the  consideration  by  Congress  of  any 
International  Copyright  Bill,  on  the  ground  that 
"  there  was  no  unanimity  of  opinion  among  those 
interested  in  the  measure." 

In  1874,  Mr.  Henry  B.  Banning  of  Ohio  intro- 
duced in  the  House  the  sixth  International  Copy- 
right Bill,  which  gave  copyright  to  foreign  authors 
on  the  simple  condition  of  reciprocity.  It  was 
referred  to  the  Committee  on  Patents,  where  it 
remained. 

In  1878,  the  project  for  a  Copyright  Convention, 
or  treaty,  was  submitted  by  Messrs.  Harper  & 
Brothers  to  Mr.  Evarts,  then  Secretary  of  State; 
and  in  1880  the  draft  of  a  Convention,  substan- 
tially identical  with  the  suggestions  of  Messrs. 
Harper,  was  submitted  by  Mr.  Lowell  to  Lord 
Granville. 

In  1883  the  American  Copyright  League  was 
organized,  mainly  on  the  lines  of  a  plan  drafted  in 
1882,  by  Edward  Eggleston  and  R.  W.  Gilder. 
Mr.  George  Parsons  Lathrop  was  made  Secretary, 
and  an  active  campaign  was  begun  in  arousing  and 
educating  public  opinion  on  the  subject. 

In  1882,  Mr.  Robinson  of  New  York  presented  a 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      45 

bill  giving  consideration  to  the  whole  subject  of 
copyright,  domestic  and  international.  It  was  re- 
ferred to  the  Committee  on  Patents,  where  it  was 
buried. 

In  1883,  the  eighth  Copyright  Bill  was  introduced 
by  Mr.  Patrick  A.  Collins  of  Massachusetts.  This 
also  was  buried  in  the  Committee  on  Patents. 

In  1884,  the  ninth  International  Copyright  Bill 
was  introduced  into  the  House  by  Mr.  Dorsheimer 
of  New  York.  This  provided  simply  for  the  ex- 
tension to  foreign  authors  of  the  privileges  en- 
joyed by  the  citizens  or  residents  of  the  United 
States. 

This  bill  was  approved  by  the  Copyright  League, 
and  was  favorably  reported  to  the  House  from  the 
Committee  on  the  Judiciary,  to  which  it  had  been 
referred.  It  reached  the  stage  of  being  discussed 
in  the  House,  but  a  resolution  to  fix  a  day  for  its 
final  consideration  was  defeated. 

In  the  same  year  a  bill  was  introduced  in  the 
House  by  Mr.  English,  dealing  with  International 
Copyright  in  dramatic  compositions.  It  was  re- 
ferred to  the  Judiciary  Committee,  which  took  no 
action. 

In  1885,  Mr.  Lowell  accepted  the  Presidency  of 
the  Copyright  League,  and  Mr.  Stedman  was  made 
its  Vice-President.  In  the  same  year,  at  the  in- 
stance of  the  League,  Senator  Hawley  of  Connec- 
ticut introduced  his  Copyright  Bill  (the  text  of 
which  is  given  in  this  volume),  which  was  substan- 
tially identical  with  that  of  Mr.  Dorsheimer.  The 
bill  was  referred  to  the  Senate  Committee  on  Pat- 


46  THE   QUESTION   OF   COPYRIGHT. 

ents.  It  was  introduced  in  the  House  by  Randolph 
Tucker  of  Virginia,  and  was,  like  its  predecessors, 
referred  to  the  Committee  on  the  Judiciary. 

In  1884  and  in  1885  the  annual  messages  of 
Presidents  Arthur  and  Cleveland  contained  earnest 
recommendations  for  the  enactment  of  some  meas- 
ure of  International  Copyright. 

January  21,  1886,  the  twelfth  International  Copy- 
right Bill  was  brought  before  the  Senate  by  Jona- 
than Chace  of  Rhode  Island,  and  was  referred  to 
the  Committee  on  Patents. 

As  Mr.  Solberg  points  out  in  his  clearly  presented 
record  of  the  fight  for  copyright,  the  introduction 
of  the  Chace  Bill  marked  a  distinct  epoch  in  the 
history  of  the  struggle  for  International  Copyright. 
The  long  work  of  education  through  the  public 
press,  the  distribution  of  pamphlets  and  missionary 
addresses,  was  at  last  bearing  fruit,  and  in  1886  it 
was  not  so  much  a  question  whether  there  should  be 
or  should  not  be  an  International  Copyright,  but 
simply  what  form  the  law  should  take. 

The  Senate  Committee  on  Patents  gave  a  careful 
consideration  to  the  two  measures  then  before  them, 
the  Hawley  Bill  and  the  Chace  Bill,  and  took  testi- 
mony concerning  them  in  four  public  hearings.  On 
May  21,  1886,  the  committee  presented  a  report 
recommending  the  passage  of  the  Chace  Bill,  but  no 
further  action  was  secured  in  the  Forty-ninth  Con- 
gress. Senator  Chace  was,  however,  a  more  persist- 
ent champion  than  the  cause  of  copyright  had  pre- 
viously been  fortunate  enough  to  secure,  and  on 
December  12,  1887,  in  the  first  session  of  the  Fif- 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      47 

tieth  Congress,  he  reintroduced  his  bill,  which  was 
again  referred  to  the  Committee  on  Patents. 

In  November,  1887,  the  American  Copyright 
League  (which  was  composed,  in  the  main,  of  the 
authors  of  the  country)  voted  to  its  Executive 
Committee  full  discretion  to  secure  the  enactment  of 
such  measure  of  International  Copyright  as  might, 
in  the  judgment  of  the  committee,  be  found  equi- 
table and  practicable.  Armed  with  this  authority, 
the  Executive  Committee  decided  to  use  its  efforts 
to  secure  the  passage  of  the  Chace  Bill,  the  only 
measure  for  which  any  adequate  support  in  Con- 
gress could  be  depended  upon.  Of  this  commit- 
tee Edward  Eggleston  was  Chairman,  George 
Walton  Green,  Secretary,  and  R.  U.  Johnson, 
Treasurer. 

In  December,  1887,  the  organization  was  effected 
of  the  American  Publishers'  Copyright  League, 
with  William  H.  Appleton  as  President,  A.  C. 
McClurg  as  Vice-President,  Charles  Scribner  as 
Treasurer,  and  Geo.  Haven  Putnam  as  Secretary. 
The  Executive  Committee  of  this  league  was  in- 
structed to  co-operate  with  the  American  authors 
in  securing  an  International  Copyright. 

A  Conference  Committe,  was  at  once  formed  of 
the  executive  committees  of  the  two  leagues,  and 
every  subsequent  step  in  the  campaign,  until  the 
passage  of  the  bill  in  1891,  was  taken  by  this  Con- 
ference Committee.  Mr.  Putnam  acted  as  Secre- 
tary of  the  Conference  Committee  until  Novem- 
ber, 1889,  when  he  was  obliged  to  give  up  the  post 
on  the  ground  of  ill-health,  and  from  that  time  until 


48  THE   QUESTION   OF   COPYRIGHT. 

the  passage  of  the  bill,  in  March,  1 891,  the  secretary's 
work  for  the  Conference  Committee  was  most  ably 
carried  on  by  Mr.  R.  U.  Johnson,  who  had  become 
Secretary  of  the  Authors'  League. 

He  divided  with  Mr.  Putnam  the  task  of  preparing 
the  documents,  but  he  took  upon  himself  the  chief 
burden  of  the  correspondence  and  of  the  arduous 
work  in  Washington. 

Various  sojourns  were  made  in  Washington  by 
Mr.  Putnam,  in  connection  particularly  with  the 
shaping  of  evidence  for  the  committees.  The  most 
important  service  in  the  capital,  however,  was  prob- 
ably that  rendered  by  Edward  Eggleston,  who  de- 
voted a  number  of  weeks  to  bringing  personal 
influence  to  bear  upon  doubtful  Representatives  and 
stubborn  Senators.  Dr.  Eggleston's  humorous  cas- 
tigation  of  Senator  Beck  of  Kentucky  (who  was 
inclined  to  characterize  copyright  as  a  "  pernicious 
monopoly")  will  be  remembered  as  one  of  the  re- 
freshing incidents  of  the  campaign.  President  Cleve- 
land took  a  keen  interest  in  the  copyright  measure, 
and  was  not  a  little  disappointed  that  it  did  not 
become  law  in  time  to  be  classed  with  the  things 
accomplished  under  his  administration.  I  may,  I 
trust,  be  pardoned  for  referring  also  to  the  valuable 
service  rendered  (in  connection  more  particularly 
with  the  social  opinion  of  the  capital)  by  the  grace- 
ful personal  influence  of  Mrs.  Cleveland,  who  was 
cordially  and  intelligently  interested  in  the  cause. 

The  Copyright  Association  of  Boston  had  been 
formed  in  December,  1887,  at  the  instance  of  Mr. 
Houghton,   Mr.    Estes,    President    Eliot,    President 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      49 

Walker,  and  other  of  the  leading  citizens  of  Boston 
having  to  do  with  literature. 

Mr.  Estes  was  made  Secretary,  and  under  his  active 
direction  the  association  promptly  made  its  influence 
felt,  and  succeeded  in  arousing  interest  in  the  question 
with  the  public  and  among  the  Congressmen  of  New 
England.  The  Boston  association  was  represented  in 
the  Conference  Committee  by  Mr.  Houghton  and  Mr. 
Estes,  and  in  addition  to  its  local  work  it  took  its  full 
share  of  the  responsibilities  of  the  general  campaign. 

The  Boston  association  was  fortunate  enough  to 
secure  the  services,  as  Counsel,  of  Mr.  Samuel  J. 
Elder,  one  of  the  leaders  of  the  Massachusetts  Bar, 
who  had  given  special  attention  to  the  law  of  copy- 
right and  was  a  recognized  authority  on  the  subject. 
Mr.  Elder  took  an  active  part  in  the  meetings  of  the 
General  Committee  in  New  York  at  the  time  when 
the  preliminary  drafts  of  the  act  were  being  worked 
over,  and  he  also  assisted  at  several  of  the  consulta- 
tions which  were  held  in  Washington  with  Senator 
Chace,  and  his  legal  experience  and  thorough  knowl- 
edge of  the  requirements  to  be  provided  for  rendered 
his  co-operation  particularly  valuable.  These  ser- 
vices of  the  Counsel  from  New  England  were,  like 
those  of  the  secretaries  and  the  other  working  mem- 
bers of  the  Leagues,  rendered  without  compensation 
and  as  a  personal  contribution  to  the  cause. 

A  Copyright  League  was  also  organized  in  Chi- 
cago, with  General  McClurg  as  President,  the  influ- 
ence of  which  throughout  the  northwest  proved 
very  valuable.  Auxiliary  leagues  were  also  formed 
in  St.  Louis,  Cincinnati,  Minneapolis,  Denver,  Buf- 


50  THE   QUESTION   OF   COPYRIGHT. 

falo,  Colorado  Springs,  and  other  places,  and  a  large 
amount  of  "  missionary "  work  for  copyright  was 
done  throughout  the  country.  The  Rev.  Henry  S. 
Van  Dyke  of  New  York  took  the  lead  in  the  work 
of  interesting  ministers  in  the  moral  phase  of  the 
question,  and  his  own  address  on  the  "  National 
Sin  of  Piracy  "  was  widely  circulated.  Archdeacon 
A.  Mackay  Smith  of  New  York  did  some  effective 
writing  in  behalf  of  the  bill  in  the  Churchman  and 
elsewhere,  and  by  means  as  well  of  the  pulpits  as 
of  the  more  intelligent  of  the  journals,  Interna- 
tional Copyright  was  made  a  question  of  the  day 
throughout  the  country. 

A  noteworthy  feature  in  the  authors'  share  of  the 
campaign  was  the  holding  of  "  authors'  readings  " 
at  meetings  called  for  the  purpose  in  New  York, 
Brooklyn,  Washington,  Boston,  Chicago,  and  else- 
where, at  which  the  leading  authors  of  the  country 
read  selections  from  their  own  writings.  The  "  read- 
ings "  were  well  attended  and  served  as  an  effective 
advertisement  of  the  copyright  cause,  while  the 
admission  fees  helped  to  defray  some  of  the  mis- 
sionary expenses  of  the  campaign.  Among  the 
authors  who  co-operated  in  these  readings  were 
Lowell,  Curtis,  Eggleston,  Stedman,  Stoddard,  Gil- 
der, Stockton,  Bunner,  Cable,  Page,  Hawthorne, 
"  Mark  Twain,"  J.  W.  Riley,  "  Uncle  Remus,"  Mrs. 
Elliott,  and  others. 

Testimony  before  the  Committees  of  the  Senate 
and  the  House  was  given  on  behalf  of  the  bill  by  a 
number  of  representatives  of  the  two  leagues,  in- 
cluding, among  the  authors,  E.  C.  Stedman,  Edward 
Eggleston,   R.   U.  Johnson,  R.   W.  Gilder,  "Mark 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      5  I 

Twain,"  and  R.  R.  Bowker,  and  among  the  pub- 
lishers, W.  W.  Appleton,  H.  O.  Houghton,  Chas. 
Scribner,  Dana  Estes,  and  G.  H.  Putnam. 

Mr.  Kennedy,  Mr.  Welsh,  and  other  representa- 
tives of  the  Typographical  Unions  of  Boston,  New 
York,  and  Philadelphia,  were  also  heard.  Argu- 
ments in  opposition  to  the  bill  were  presented  by 
Mr.  Gardiner  Hubbard,  a  lawyer  of  Washington, 
who  said  that  he  spoke  simply  for  himself,  and  by 
Messrs.  Arnoux,  Ritch  &  Woodford,  a  law  firm  of 
New  York,  representing  certain  clients  whose  names 
they  were  unwilling  to  disclose.  After  two  years  of 
service  on  behalf  of  these  anonymous  clients,  they 
finally  stated,  under  pressure  from  the  Chairman  of 
the  House  Committee  on  the  Judiciary,  that  they 
were  opposing  the  bill  in  the  interest  of  Mr.  Ignatius 
Kohler  of  Philadelphia,  Mr.  Kohler  being  a  Ger- 
man publisher  of  modest  business  standing.  The 
committee  did  not  feel  that  it  had  been  candidly 
dealt  with  by  the  counsel,  and  this  feeling  doubtless 
helped  to  secure  their  favorable  report  for  the  bill. 

The  first  draft  of  the  bill  which  was  submitted  to 
Senator  Chace  by  the  authors  and  the  publishers 
provided  that  foreign  books  securing  American 
copyright  must  be  printed  in  the  United  States, 
but  permitted  the  importation  of  clichds  of  the  type 
or  of  duplicates  of  the  plates  used  in  printing  the 
original  editions. 

It  was  contended  that  for  certain  classes  of  books 
the  necessity  of  doing  the  type-setting  twice  in- 
stead of  dividing  its  cost  between  an  English  and  an 
American  edition  would  involve  a  wasteful  expense, 


52  THE   QUESTION   OF   COPYRIGHT. 

the  burden  of  which  would  have  to  be  shared  be- 
tween the  readers,  the  authors,  and  the  publishers. 
On  the  other  hand,  the  Typographical  Unions  in- 
sisted that  a  provision  for  American  type-setting 
was  essential  for  their  trade  interests,  and  that  un- 
less such  a  provision  were  inserted  they  would  be 
under  the  necessity  of  opposing  the  bill.  It  was 
the  opinion  of  Senator  Chace,  and  of  other  of  the 
congressional  friends  of  copyright,  that  the  co- 
operation of  the  unions  would  be  very  important, 
while  their  influence  against  the  bill  in  committee 
and  through  their  friends  in  the  House  would  prob- 
ably be  sufficiently  powerful  to  prevent  its  passage, 
at  least  at  any  early  date. 

It  was,  therefore,  decided  by  the  authors  and  pub- 
lishers of  the  two  leagues  to  meet  the  views  of  the 
typographers  on  this  point,  and,  in  utilizing  their 
co-operation  to  associate  with  the  Conference  Com- 
mittee a  representative  of  the  National  Typographi- 
cal Union.  Mr.  Boselly  was  the  first  typograph- 
ical representative ;  he  was  later  succeeded  by  Mr. 
Dumars,  who  had  also  succeeded  him  as  the  Presi- 
dent of  the  New  York  union.  The  most  active  and 
important  work  for  the  bill  on  behalf  of  the  Typo- 
graphical Unions  was,  however,  done  by  Mr.  Ken- 
nedy, of  the  Washington  union,  whose  services  in 
Washington  proved  most  valuable. 

The  negotiations  with  the  Unions  were  carried 
on  in  Philadelphia  by  Mr.  C.  Febiger,  and  in  New 
York  by  Mr.  Eggleston  and  Mr.  Putnam. 

The  National  Association  of  Typothetse,  or  em- 
ploying printers,  was  represented  in  the  Conference 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      53 

Committee  by  Mr.  Theodore  L.  De  Vinne,  through 
whose  influence  and  arguments,  at  two  of  the  an- 
nual meetings  of  the  Typothetae,  resolutions  were 
secured  in  support  of  the  bill. 

The  second  bill  introduced  by  Senator  Chace  con- 
tained the  clause,  drafted  at  the  instance  of  the 
typographers,  providing  that  the  foreign  book  se- 
curing American  copyright  must  be  printed  from 
type  set  within  the  United  States.  It  also  provided 
for  the  prohibition  of  the  importation  of  all  foreign 
editions  of  works  copyrighted  in  this  country. 

For  the  wording  of  these  provisions  of  the  bill 
Henry  C.  Lea  of  Philadelphia  was  chiefly  responsi- 
ble. Mr.  Lea,  himself  an  author  of  distinction,  had 
had  long  experience  as  a  publisher.  He  was  a 
strong  believer  in  the  principle  of  international 
copyright,  but  he  was  equally  clear  in  his  convic- 
tion that  it  would  be  contrary  to  the  interests  of 
the  community  to  permit  any  injury  to  the  business 
of  the  American  book-making  trades,  or  to  transfer 
to  English  publishers  any  control  of  the  American 
book-market.  He  contended,  therefore,  that  the 
total  American  manufacture  of  the  books  copy- 
righted must  be  made  an  essential  condition  of  the 
concession  of  American  copyright  to  foreign  au- 
thors. His  contention,  backed  up  by  the  printers, 
was  finally  accepted  by  the  authors,  and  the  "type- 
setting "  and  "  non-importation  "  clauses  were  in- 
serted in  the  bill. 

The  Chace  bill,  thus  modified,  was  introduced  in 
the  House  March  19,  1888,  byW.  C.  P.  Breckinridge 
of   Kentucky,  and   referred  to  the   Judiciary  Com- 


54  THE   QUESTION   OF  COPYRIGHT. 

mittee,  and  by  the  committee  favorably  reported  to 
the  House  April  21. 

On  April  23  the  bill  was  called  up  for  considera- 
tion in  the  Senate,  and  after  a  discussion  which 
took  portions  of  several  days,  it  was  passed  May 
9,  1888,  by  a  vote  of  34  to  10. 

The  leaders  in  its  support  were  Senators  Chace, 
Hawley,  Hoar,  Frye,  and  Piatt,  while  its  most 
active  opponents  were  Senators  Beck  of  Kentucky, 
Daniels  of  Virginia,  George  of  Mississippi,  and  Rea- 
gan of  Texas. 

In  the  House  the  bill  was  not  in  as  favorable  a 
position  on  the  calendar,  while  the  long  discussion 
of  tariff  questions  in  connection  with  the  Mills  Bill 
had  seriously  blocked  the  progress  of  business.  Not- 
withstanding, therefore,  the  prestige  of  the  success 
of  the  measure  in  the  Senate,  it  did  not  prove  prac- 
ticable during  the  session  to  bring  it  to  a  vote  in  the 
House.  The  difficulty  may,  also,  have  been  some- 
what increased  by  the  fact  that  the  bill  had  origi- 
nated in  the  Senate,  which  was  strongly  Republican, 
while  the  conduct  of  business  in  the  House  was  in 
the  hands  of  a  Democratic  majority. 

The  campaign  for  the  Copyright  Bill  in  the  Fifty- 
first  Congress  was  initiated  at  a  breakfast  given  in 
New  York  on  the  7th  of  December,  1889,  by  advo- 
cates of  International  Copyright,  to  the  Comte  de 
K£ratry,  in  compliment  to  himself  and  to  the 
French  literary  and  artistic  associations  of  which 
he  was  the  representative. 

In  the  Fifty-first  Congress  the  bill  was  promptly 
introduced  in  the  Senate  December  4,  1889,  by  Sen- 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      55 

ator  O.  H.  Piatt  of  Connecticut  (Senator  Chace 
having  in  the  meantime  resigned  his  seat),  and  was 
again  referred  to  the  Committee  on  Patents.  A 
duplicate  of  the  bill  was,  on  January  6,  1890,  intro- 
duced in  the  House  by  W.  C.  P.  Breckinridge  of 
Kentucky,  its  old-time  supporter,  and  found  its  way 
in  regular  course  to  the  Committee  on  the  Judiciary, 
From  this  committee  it  was  favorably  reported  on 
January  21,  1890.  For  the  purpose  of  securing  a 
double  chance  for  the  bill,  Mr.  Butterworth  of  Ohio, 
an  earnest  friend  of  copyright,  also  introduced  the 
bill,  and  had  it  referred  to  the  Committee  on  Pat- 
ents, of  which  he  was  chairman.  The  result  showed 
that  if  it  had  not  been  for  this  piece  of  foresight 
the  bill  could  hardly  have  succeeded  in  the  Fifty- 
first  Congress.  In  this  Congress  the  majority  in  the 
House,  as  well  as  in  the  Senate,  was  Republican, 
and  it  was,  therefore,  essential  to  place  the  bill 
under  Republican  leadership. 

Fortunately,  in  connection  with  this  necessity, 
two  active  friends  had  been  found  for  the  measure 
on  the  Republican  side  of  the  House — Mr.  G.  E. 
Adams  of  Chicago,  and  Mr.  W.  E.  Simonds  of  New 
Haven. 

The  former  presented  to  the  House  on  the  15th 
of  February,  a  forcible  report  in  favor  of  the  bill, 
together  with  a  new  printing  of  the  bill  itself,  giv- 
ing the  full  wording  of  the  sections  of  the  Revised 
Statutes,  as  they  would  appear  when  the  new  pro- 
visions had  been  inserted. 

On  February  18,  Mr.  Simonds  submitted  a  fav- 
orable   report    from    the    Committee    on     Patents, 


56  THE   QUESTION   OF  COPYRIGHT. 

accompanied  by  a  bill  which  was  a  duplicate  of  that 
of  Mr.  Adams,  with  the  addition,  however,  of  what  is 
known  as  the  Reciprocity  clause.  On  February  21, 
Senator  Piatt  obtained  leave  to  substitute  the  text 
of  the  Adams  bill  for  his  Senate  bill. 

On  the  1st  of  May,  the  Adams  Judiciary  Com- 
mittee Bill  was  reached  on  the  calendar  of  the 
House,  and  after  a  vigorous  discussion,  extending 
over  two  days,  the  third  reading  was  refused  by  a 
vote  of  126  to  98.  The  opposing  vote  was  largely 
Democratic,  but  it  was  led  by  a  Republican,  Judge 
Lewis  E.  Payson  of  Illinois,  while  on  the  Demo- 
cratic side  Mr.  Breckinridge  of  Kentucky  was,  as 
heretofore,  active  in  support  of  the  bill ;  and  he 
was  ably  assisted  on  his  side  of  the  House  by  W. 
L.  Wilson  of  West  Virginia,  Ashbel  P.  Fitch  of 
New  York,  and  others,  and  among  the  Republicans, 
by  Mr.  Lodge,  Mr.  Stewart  of  Vermont,  Mr.  Si- 
monds,  and  others.  Not  discouraged  by  this  adverse 
vote,  Mr.  Simonds,  having  added  a  reciprocity 
clause  to  his  bill,  again  introduced  it  on  the  16th 
of  May,  and  had  it  referred  to  the  Committee  on 
Patents,  and  on  June  10  it  was  again  reported  from 
that  committee.  The  report,  which  was  written  by 
Mr.  Simonds,  was  most  comprehensive  and  forcible, 
and  it  has  been  included  in  this  volume. 

Early  in  the  second  session,  Mr.  Simonds  suc- 
ceeded in  getting  a  day  fixed  for  his  bill,  and  on 
December  3  the  bill  was  passed  by  a  vote  of  139 
to  96. 

The  result  was  partly  due  to  skilful  parliamentary 
management,  and  to  the  personal  influence  brought 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      $? 

to  bear  upon  more  or  less  indifferent  members  and 
upon  members  who  had  previously  misapprehended 
the  subject,  by  Representatives  who  had  made  a 
careful  study  of  it,  like  Mr.  Lodge  of  Massachu- 
setts, Mr.  Simonds,  and  others. 

A  good  share  of  the  credit  for  the  noteworthy 
change  in  the  opinion  of  the  House  may,  however, 
justly  be  claimed  for  the  active  "  missionary  "  work 
which  had  been  kept  up  by  the  league  during  the 
summer  throughout  the  country,  and  especially  in 
the  constituencies  of  doubtful  members,  by  means 
of  the  distribution  of  tracts  and  arguments,  the 
preparation  of  material  for  the  leaders  of  local 
newspapers,  and  also  by  reaching  the  personal  cor- 
respondents of  authors  and  the  friends  of  authors. 

The  higher  grade  journals  throughout  the  country 
gave  a  hearty  support  to  the  bill,  and  the  aid  of  the 
Times,  Tribune,  and  Post,  of  New  York,  the  Sun  of 
Baltimore,  the  Times  and  Ledger  of  Philadelphia, 
and  the  Commercial  of  Cincinnati,  was  especially 
valuable.  The  members  of  the  book  trade  were  kept 
thoroughly  informed  and  educated  on  the  subject  by 
an  able  series  of  papers  in  the  Publishers'  Weekly. 

The  bill,  as  passed  in  the  House,  was  considered 
in  the  Senate  in  a  discussion  extending  over  portions 
of  six  days. 

A  similar  measure  (the  Chace  Bill)  having  before 
received  the  approval  of  a  majority  of  the  Senators, 
it  was  at  first  thought  that  the  success  of  this  bill  in 
the  Senate  was  assured.  On  the  strength  of  the 
record  of  the  Chace  Bill,  the  secretary  of  the  Joint 
Committee  obtained  for  the  bill  the  second  place  on 


58  THE   QUESTION   OF   COPYRIGHT. 

the  calendar  of  the  prescribed  business  for  the  ses- 
sion, "without  which  advantage  it  would  probably 
not  have  been  reached.  New  obstacles  had,  how- 
ever, developed,  including  the  political  prejudices 
engendered  by  the  preceding  election,  and  the  fight 
of  two  years  before  had  to  be  fought  over  again  on 
new  lines,  although  with  the  great  aid  of  the  import- 
ant work  previously  accomplished. 

Certain  of  the  senators  who  had  previously  voted 
for  the  bill  and  who  had  expressed  themselves  as 
friendly  to  its  principles,  found  themselves  now  inter- 
ested in  proposing  various  amendments,  some  of 
which  were  inconsistent  with  the  main  purpose  and 
with  the  existing  provisions  of  the  bill,  and  all  of  which 
were  promptly  taken  advantage  of  by  the  opponents 
as  affording  opportunities  for  killing  the  bill  by  delays. 

The  amendment  which  brought  out  the  largest 
amount  of  discussion  was  that  offered  by  Senator 
Sherman,  which  has  already  been  referred  to  in  this 
volume  (in  the  analysis  immediately  following  the 
text  of  the  Act). 

This  amendment  authorized  the  importation  of 
foreign  editions  of  books  by  foreign  authors  secur- 
ing American  copyright.  The  supporters  of  the 
bill  contended  that  such  an  authorization  would  be 
incompatible  with  the  manufacturing  provisions  of 
the  bill,  which  made  American  manufacture  of  all  the 
editions  issued  in  this  country  an  essential  condition 
of  American  copyright.  It  became  apparent  after 
the  first  conferences  that  the  House  would  not  recede 
from  this  view,  and  the  amendment,  after  being 
twice  passed  by  the  Senate,  was  finally  abandoned. 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      59 

A  modification  was,  however,  finally  made  in  the 
Conference  Committee  in  the  provision  of  the  bill 
permitting  the  importation  of  copies  of  authorized 
foreign  editions  of  works  copyrighted  in  the  United 
States,  in  quantities  not  to  exceed  two  copies  in  any 
one  invoice.  This  provision,  as  originally  worded, 
made  the  written  consent  of  the  owner  of  the  copy- 
right a  condition  of  the  importation  of  these  two 
copies.  The  Conference  Committee  eliminated  the 
consent  of  the  author.  This  concession  undoubtedly 
helped  to  secure  the  final  vote  in  the  Senate,  accept- 
ing the  bill  without  the  Sherman  amendment,  as  it  re- 
moved the  objection  that  readers  preferring  European 
editions  ought  not  to  be  prevented  from  securing  these 
(in  duly  authorized  issues)  for  their  own  libraries. 

A  fourth  amendment,  to  the  consideration  of  which 
a  good  deal  of  time  was  also  given  in  the  Senate,  was 
presented  by  Senator  Frye,  in  the  interest  of  Ameri- 
can lithographers  and  chromo-manufacturers. 

As  first  worded,  it  provided  that  foreign  artists 
and  designers  could  secure  American  copyright  for 
their  art  productions  or  designs  only  when  the  re- 
productions of  these  had  been  manufactured  in  the 
United  States.  This  Frye  amendment  was  vigor- 
ously opposed  by  the  artists  throughout  the  country 
and  by  all  who  were  interested  in  having  justice 
done  to  foreign  artists,  and  petitions  against  it  came 
in  from  New  York,  Boston,  Philadelphia,  Chicago, 
and  elsewhere.  The  friends  of  the  bill  pointed  out 
that  it  would  in  the  larger  number  of  cases  be  ab- 
solutely impracticable  for  foreign  artists  to  arrange 
to   have  the   reproductions    of   their  works  of   art 


60  THE   QUESTION   OF   COPYRIGHT. 

manufactured  in  the  United  States,  as  this  would 
necessitate  the  importation  of  the  original — an  im- 
portation entailing,  in  addition  to  other  serious  dis- 
advantages, outlays  for  freight  and  duty. 

The  amendment  would,  therefore,  have  the  result 
of  nullifying  the  American  copyright  of  foreign  art- 
ists, which  it  had  been  the  intention  of  the  bill  to 
secure.  This  Frye  amendment  passed  the  Senate  on 
the  17th  of  February  by  a  vote  of  41  to  24.  The 
secretary  of  the  Joint  Committee,  who  had  spent  six 
weeks  of  the  session  in  Washington,  in  active  canvass 
for  the  bill,  took  immediate  steps  to  organize  an  op- 
position to  this  amendment,  both  in  Congress  and 
throughout  the  country. 

As  a  result  of  the  protests  that  came  in  to  the  Sen- 
ate from  art  associations,  artists,  art  students,  from 
educational  centres,  and  from  many  of  the  leading 
journals,  the  action  of  the  Senate  was  on  the  19th  of 
February,  reversed  by  a  vote  of  33  to  31.  Among 
those  who  were  active  in  bringing  public  opinion  to 
bear  upon  Congress  in  this  matter  were  R.  W.  Gilder, 
Dana  Estes,  and  G.  H.  Putnam.  In  its  final  form 
the  bill  provided  for  the  American  manufacture  only 
of  such  art  reproductions  as  took  the  form  of  litho- 
graphs, photographs,  and  chromos  ;  and  left  the 
foreign  artist,  therefore,  in  a  position  to  secure,  ir- 
respective of  place  of  manufacture,  American  copy- 
right for  reproductions  in  the  form  of  engravings  (on 
steel  or  on  copper)  and  photogravures. 

An  amendment  proposed  by  Senator  Ingalls,  and 
finally  accepted,  with  some  modifications,  by  the 
Conference  Committee,   permitted  the  importation 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.   6l 

of  foreign  newspapers  and  magazines  containing 
material  that  had  been  copyrighted  in  the  United 
States,  provided  the  publication  in  such  periodicals 
had  been  authorized  by  the  author. 

The  most  active  supporters  of  the  bill  in  the  Senate 
were  Senator  Piatt,  whose  patience,  parliamentary 
skill,  and  tact  were  unwearying,  and  Senator  Hoar, 
Evarts,  Hawley,  Wolcott,  Aldrich,  and  Dixon. 

The  most  persistent  and  unwearying  opponent 
was  Senator  Daniels  of  Virginia,  who  was  supported 
in  his  opposition  by  Senators  Sherman,  Hale,  Pasco, 
Vance,  Reagan,  and  Plumb. 

Mr.  Daniels  took  up  a  considerable  portion  of  the 
time  allotted  to  the  bill  during  the  several  days  of 
the  debate,  and  at  one  time  it  looked  as  if  he  would 
succeed,  in  connection  with  the  crowded  condition 
of  the  calendar,  in  killing  it  by  "  talking  out  the 
time."  While  criticising  severely  the  protectionist 
provision  of  the  bill,  he  voted  for  the  Frye  amend- 
ment, which  constituted  an  important  addition  to 
these  provisions,  and  he  voted  for  every  amendment 
which  seemed  likely  to  make  delays.  The  bill,  with 
the  several  Senate  amendments,  passed  the  Senate 
on  the  19th  of  February,  by  the  decisive  vote  of  36 
to  14,  38  members  being  absent. 

On  the  1st  of  March  the  House  decided,  by  a 
vote  of  128  to  64,  not  to  concur  with  the  Senate 
amendments.  The  friends  of  the  measure  voted 
with  the  majority,  having  already  assured  them- 
selves that  it  would  not  be  practicable  to  pass  the 
bill  in  the  House  with  the  amendments. 

On  the  3d  of  March  Mr.  Simonds  reported  to  the 


62  THE   QUESTION   OF   COPYRIGHT. 

House  that  the  Conference  Report  had  agreed  upon 
certain  of  the  amendments,  with  some  modifications, 
but  had  disagreed  upon  the  Sherman  amendment. 
He  secured,  by  a  vote  of  139  to  90,  authority  for 
another  conference.  On  the  evening  of  the  same 
day  the  Senate  refused,  by  a  vote  of  33  to  28,  to 
recede  from  the  Sherman  amendment,  but  also 
ordered  another  conference. 

The  result  of  this  second  conference,  which  took 
place  after  one  o'clock  on  the  night  of  the  3d,  was 
a  report  to  the  Senate  by  a  majority  of  its  com- 
mittee, in  favor  of  receding  from  the  Sherman 
amendment.  The  change  in  the  opinion  of  the 
Senate  Committee  had  been  brought  about  by  a 
change  in  the  position  of  Senator  Hiscock,  who  had 
become  convinced  that  if  an  International  Copyright 
Law  was  to  be  enacted  by  the  Fifty-first  Congress, 
the  Sherman  amendment  must  be  abandoned.  His 
associates  on  the  committee  were  Senator  Piatt,  who 
had  from  the  outset  opposed  the  amendment,  and 
Senator  Gray  of  Delaware,  who  favored  it.  The  report 
of  the  second  Conference  Committee  was  accepted 
by  the  House,  by  a  vote  of  127  to  82,  the  House  having 
accepted  from  the  Senate  the  Frye  amendment  (as 
modified),  the  Ingalls  amendment,  and  an  amendment 
proposed  by  Senator  Edmunds,  giving  to  the  Presi- 
dent, in  place  of  the  Attorney-General,  the  responsi- 
bility of  declaring  when  reciprocity  had  been  arranged 
for  with  any  foreign  state,  and  the  provisions  of  the 
act  had,  therefore,  come  into  force  with  such  state. 

The  successful  steering  of  the  bill  through  the 
House    in   the   several   votes    required    during    the 


CONTEST  FOR  INTERNATIONAL  COPYRIGHT.      63 

night  of  the  3d  of  March  was  largely  the  work  of 
Henry  Cabot  Lodge,  and  was  not  a  little  furthered 
by  the  friendly  co-operation  of  Speaker  Reed. 

At  half-past  two  in  the  morning  of  March  4  the 
Senate  assented  to  the  final  report  of  its  Conference 
Committee,  by  a  vote  of  27  to  19  (with  40  senators 
absent),  and  the  bill  was  passed. 

A  motion  to  reconsider  was,  however,  immediately 
made  by  Mr.  Pasco  of  Florida,  and,  although  the 
bill  had  in  the  meantime  been  signed  by  the  Vice- 
President,  it  was  not  permitted  to  be  sent  to  the 
President  until  a  quorum  could  be  secured  to  vote 
upon  Mr.  Pasco's  motion.  This  was  accomplished 
at  half-past  ten  in  the  morning  of  March  4,  within 
an  hour  of  the  close  of  the  Fifty-first  Congress, 
when  the  motion  to  reconsider  was  defeated  by  the 
vote  of  29  to  21,  with  36  absentees. 

The  greater  number  of  the  Senators  had  been  up 
through  a  large  part  of  the  night,  and  the  friends 
of  the  bill  were  rallied  to  resist  this  last  assault  only 
by  means  of  an  urgent  "  whip  "  delivered  in  person 
by  Mr.  Johnson,  Mr.  Appleton,  and  Mr.  Scribner, 
who,  acting  on  behalf  of  the  Copyright  Leagues, 
had,  in  company  with  Mr.  Piatt,  Mr.  Lodge,  and 
other  friends  of  the  bill,  kept  a  continuous  vigil 
over  its  varying  fortunes  during  the  long  hours  of 
the  night  session. 

The  bill  was  promptly  signed  by  the  President, 
and  thus,  after  a  struggle  extending  over  fifty-three 
years,  the  United  States  put  itself  on  record  as  ac- 
cepting the  principle  of  International  Copyright. 

New  York,  April  2,  1S91. 


V. 
THE    HAWLEY    BILL. 

INTRODUCED  into  the  Senate,  January,  1885,  by 
Senator  J.  R.  Haw  ley  of  Connecticut,  but  never 
reported  from  the  Committee  on  Patents  to  which 
it  was  referred. 

Be  it  enacted,  etc. 

I.  The  citizens  of  foreign  states  and  countries,  of  which  the  laws, 
treaties,  or  conventions  confer  or  shall  hereafter  confer  upon  citi- 
zens of  the  United  States  rights  of  copyright  equal  to  those  accorded 
to  their  own  citizens,  shall  have  in  the  United  States  rights  of  copy- 
right equal  to  those  enjoyed  by  citizens  of  the  United  States. 

II.  This  act  shall  not  apply  to  any  book  or  other  subject  of  copy- 
right published  before  the  date  hereof. 

III.  The  laws  now  in  force  in  regard  to  copyright  shall  be  appli- 
cable to  the  copyright  hereby  created,  except  so  far  as  the  said  laws 
are  hereinafter  amended  or  repealed. 

IV.  Section  4971  of  the  Revised  Statutes  of  the  United  States  is 
hereby  repealed.  Section  4954  is  amended  by  striking  out  the  words 
"and  a  citizen  of  the  United  States  or  resident  therein."  Section 
4967  is  amended  by  striking  out  the  words  "  if  such  author  or  pro- 
prietor is  a  citizen  of  the  United  States  or  resident  therein." 

V.  The  proclamation  of  the  President  of  the  United  States  that 
such  equality  of  rights  exists  in  any  country  shall  be  conclusive  proof 
of  such  equality. 


VI. 

AN  ANALYSIS  OF  A  SCHEME  FOR  INTER- 
NATIONAL COPYRIGHT,  SUGGESTED 
BY  MR.  R.  PEARSALL-SMITH.      . 

Reprinted,  with  some  additions,  from  the  New  York  Evening  Post. 

PUBLIC  attention  has  recently  been  directed  to  a 
new  scheme  for  international  copyright  which  has 
been  presented  in  the  Nineteenth  Century  by  Mr.  R. 
Pearsall-Smith,  of  Philadelphia,  under  the  title  of 
"  An  Olive  Branch  from  America."  Mr.  Smith  pro- 
poses: 

(i)  That  any  American  publisher  shall  be  at  lib- 
erty to  print  editions  of  the  works  of  a  foreign 
author  under  the  condition  of  paying  to  such  author 
a  royalty  of  ten  per  cent,  of  the  retail  price. 

(2)  That  this  royalty  shall  be  paid  by  the  pur- 
chase from  the  author,  in  advance  of  the  publication 
of  the  American  edition,  of  stamps  representing  the 
above  rate,  as  many  stamps  being  bought  as  there 
are  copies  printed  in  the  edition,  and  each  copy  of 
the  book  that  is  placed  in  the  market  by  the  pub- 
lisher bearing  one  of  these  stamps  conspicuously 
affixed. 

The  plan  contains  some  further  suggestions  as  to 
the  penalties  for  the  sale  or  purchase  of  an  un- 
stamped book,  but  the  above  are  the  essential  pro- 
visions, and  the  only  ones  at  present  calling  for  con- 
sideration. 
5 


66  THE  QUESTION   OF  COPYRIGHT. 

Mr.  Smith  does  not  speak  as  an  author,  and  it  is 
evident  that  he  has  no  adequate  knowledge  of  the 
conditions  under  which  is  carried  on  the  business  of 
publishing  and  distributing  books.  It  seems  desir- 
able, however,  to  give  present  consideration  to  the 
practicability  of  his  suggestions,  as  well  because 
he  has  seen  fit  to  present  them  to  the  British  pub- 
lic with  a  certain  assumption  of  speaking  for  the 
American  community,  and  has  secured  for  them  the 
quasi  approval  of  certain  English  authors,  such  as 
Tennyson,  Gladstone,  Matthew  Arnold  and  others, 
as  because  at  this  time,  when  those  who  have  for 
many  years  been  working  on  behalf  of  international 
copyright  are  again  hopeful  of  securing  favorable 
attention  from  Congress,  it  is  important  that  public 
and  legislative  opinion  should  not  be  confused  with 
crude  and  visionary  schemes. 

The  question  of  international  or  of  domestic 
copyright  is,  it  is  claimed,  and  with  justice,  in  the 
main  a  matter  between  the  authors  and  the  public, 
and  in  shaping  legislation  the  rights  of  authors  and 
the  interests  of  the  public  are  the  essential  things  to 
be  considered.  It  is  in  order,  nevertheless,  for  pub- 
lishers to  claim  a  hearing  in  connection  with  the 
provisions  of  copyright  legislation,  not  because  the 
interests  of  their  small  group  ought  to  be  in  any 
degree  offset  against  those  of  the  community,  but 
because  their  experience  gives  them  the  knowledge 
(possessed  by  no  other  class)  of  the  conditions  under 
which  the  proposed  laws  must  do  their  work,  and 
legislation  put  into  shape  without  the  benefit  of  this 
technical  knowledge  may  easily  fail  of  its  purpose  as 


THE   PEARSALL-SMITH   SCHEME.  6y 

well  in  protecting  the  authors  as  in  serving  the  real 
interests  of  the  community. 

The  measure  of  permitting  a  foreign  book  to  be 
reprinted  by  all  dealers  who  will  contract  to  pay  the 
author  a  specified  royalty,  is,  of  course,  not  original 
with  Mr.  Smith.  It  was  suggested  in  1872  by  John 
P.  Morton,  John  Elderkin,  and  others,  in  connection 
with  the  attempt  then  made  to  secure  international 
copyright.  In  1877,  at  tne  time  tne  British  Copy- 
right Commission  was  engaged  in  revising  the  act 
for  domestic  copyright,  the  proposal  was  made  by 
Mr.  Farrer  (now  Sir  Thomas  Farrer)  that  a  similar 
provision  should  apply  to  domestic  publishing,  and 
that  for  the  purpose  of  securing  cheap  books  for  the 
people,  all  dealers  should  have  the  privilege  of  pub- 
lishing editions  of  an  author's  works,  who  would 
agree  to  pay  to  the  author  a  copyright,  to  be  fixed 
by  law,  which  would  secure  him  "  a  fair  profit  for 
his  labor."  Herbert  Spencer,  in  his  testimony 
before  the  Commission,  objected  that : 

(1)  This  would  be  a  direct  interference  with  the 
laws  of  trade  under  which  the  author,  like  any  pro- 
ducer, had  the  right  to  select  his  own  agents  and 
make  his  own  bargains. 

(2)  No  legislature  was  competent  to  determine 
what  was  "  a  fair  rate  of  profit  for  an  author." 

(3)  No  average  royalty  could  be  determined  which 
could  give  a  fair  recompense  for  the  different 
amounts  and  kinds  of  labor  given  to  the  production 
of  different  classes  of  books. 

(4)  If  the  legislature  has  the  right  to  fix  the  profit 
of  the  author,  it  has  an  equal  right  to  determine 


63  THE   QUESTION   OF  COPYRIGHT. 

that  of  his  associate  in  the  publication,  the  pub- 
lisher ;  and  if  of  the  publisher,  then  also  of  the 
printer,  binder,  and  paper-maker,  who  all  have  an 
interest  in  the  undertaking.  Such  a  right  of  control 
would  apply  with  equal  force  to  manufacturers  of 
other  articles  of  importance  to  the  community,  and 
would  not  be  in  accordance  with  the  present  theo- 
ries of  the  proper  functions  of  government. 

(5)  If  books  are  to  be  cheapened  by  such  a  meas- 
ure, it  must  be  at  the  expense  of  some  portion  of 
the  profits  now  going  to  the  authors  and  publishers; 
the  assumption  is  that  book  producers  and  distribu- 
ters do  not  understand  their  business,  but  require 
to  be  instructed  by  the  state  how  to  carry  it  on, 
and  that  the  publishing  business  alone  needs  to  have 
its  returns  regulated  by  law. 

(6)  The  prices  of  the  best  books  would  in  many 
cases,  instead  of  being  lessened,  be  higher  than  at 
present,  because  the  publishers  would  require  to 
insure  themselves  against  the  risk  of  rival  editions, 
and  because  they  would  make  their  first  editions 
smaller,  and  the  first  cost  would  have  to  be  divided 
among  a  less  number  of  copies.  Such  reductions  of 
prices  as  would  be  made  would  be  on  the  flimsier 
and  more  popular  literature,  and  even  on  this  could 
not  be  lasting. 

(7)  For  enterprises  of  the  most  lasting  importance 
to  the  public,  the  publishers  require  to  be  assured 
of  returns  from  the  largest  market  possible,  and 
without  such  security,  enterprises  of  this  character 
could  not  be  undertaken  at  all. 

(8)  Open   competition  of  this  kind  would  in  the 


THE   PEARSALL-SMITH    SCHEME.  69 

end  result  in  crushing  out  the  smaller  publishers, 
and  Jn  concentrating  the  business  in  the  hands  of  a 
few  houses  whose  purses  had  been  long  enough  to 
carry  through  the  long  and  unprofitable  contests 
that  would  certainly  be  the  first  effect  of  such  legis- 
lation. 

Every  one  of  these  objections  adduced  against 
the  plan  of  open  publishing  for  domestic  works, 
applies  with  equal  force  to  the  plan  of  legalizing 
such  open  republishing  for  foreign  works,  and  there 
are  some  further  considerations  which  Mr.  Spencer 
did  not  mention. 

A  British  author  could  hardly  obtain  much  satis- 
faction from  an  arrangement  which,  while  prevent- 
in^  him  from  placing  his  American  business  in  the 
hands  of  a  publishing  house  selected  by  himself, 
and  of  whose  responsibility  he  could  assure  himself, 
threw  open  the  use  of  his  property  to  any  dealers 
who  might  choose  to  scramble  for  it.  The  author 
could  exercise  no  control  over  the  style,  shape, 
accuracy,  or  completeness  of  his  American  edition, 
the  character  of  the  illustrations  contained  in  his 
books,  or  the  appropriateness  of  the  association 
that  might  be  given  to  his  writings  (in  series  or  in 
volumes)  with  the  works  of  other  writers.  If  the 
author  were  tenacious  as  to  the  collection  of  the 
royalties  to  which  he  would  become  entitled,  he 
would  in  many  cases  be  able  to  enforce  his  claims 
(even  under  the  proposed  "  stamp  act  ")  only 
through  troublesome  supervision  and  probably 
through  vexatious  lawsuits,  the  expenses  of  which 
might  easily   exceed  his  receipts.     The  benefit  to 


JO  THE   QUESTION   OF   COPYRIGHT. 

the  public  would  be  no  more  apparent.  Any  gain 
in  the  cheapness  of  the  editions  produced  would  be 
more  than  offset  by  their  unsatisfactorincss.  They 
would  in  the  majority  of  cases  be  untrustworthy  as 
to  accuracy  or  completeness,  and  be  hastily  and 
flimsily  manufactured.  Scientific  works  could,  as 
Mr.  Huxley  points  out,  have  their  value  materially 
impaired  by  presenting  illustrations  which  were 
only  travesties  of  the  author's  original  designs,  and 
such  inadequate  and  misleading  illustrations  would 
assuredly  find  place  in  the  competing  editions  of 
the  more  "  enterprising  "  reprinters. 

A  certain  class  of  British  authors  would  have  the 
further  ground  for  objection  that  the  provision  re- 
quiring payment  in  advance  of  copyright  on  the 
first  edition  would  not  infrequently  have  the  effect 
of  preventing  any  American  edition  of  their  books 
from  being  undertaken.  There  is  always  considera- 
ble risk  in  reprinting  a  first  book  by  a  foreign  au- 
thor, and  the  writers  of  first  books  are  as  a  rule 
sufficiently  desirous  to  bring  their  productions  to 
the  attention  of  the  American  public  to  be  very 
willing  to  permit  the  payment  of  compensation  to 
the  author  to  be  left  contingent  upon  there  being 
any  profits  from  the  sales. 

A  great  many  ventures,  desirable  in  themselves, 
and  that  would  be  of  service  to  the  public,  no  pub- 
lisher could,  under  such  an  arrangement,  afford  to 
undertake  at  all,  as,  if  they  proved  successful,  un- 
scrupulous neighbors  would,  through  rival  editions, 
reap  the  benefit  of  his  initiative,  his  literary  judg- 
ment, and  his  advertising.     For  works  of  this  class, 


THE   PEARSALL-SMITH    SCHEME.  J I 

reprints  of  which  were  not  ventured  upon,  Ameri- 
can buyers  would  of  course  be  obliged  to  depend 
upon  the  more  costly  foreign  editions. 

It  is  also  the  case  that  a  certain  class  of  publica- 
tions, of  which  the  "  International  Science  Series" 
and  the  "  Story  of  the  Nations  Series  "  are  exam- 
ples, are  the  undertakings  of  the  publisher.  They 
are  in  a  sense  the  creation  of  the  publisher,  as  they 
would  not  have  come  into  existence  at  all  except 
for  the  publisher's  initiative  and  planning ;  and  the 
volumes  in  them  are  usually  written  at  the  pub- 
lisher's suggestion.  The  commercial  value  of  such 
a  series  depends  in  part  upon  the  value  of  the  indi- 
vidual volumes,  but  largely,  also,  upon  the  planning 
and  editorial  management  of  the  undertaking  as  a 
whole ;  and  a  considerable  part  of  the  sale  of  any 
one  of  these  volumes  is  to  be  credited  to  its  con 
nection  with  the  series.  In  any  such  series,  cer- 
tain of  the  volumes,  which  are  necessary  and  im- 
portant to  give  completeness  to  the  general  plan, 
are,  from  the  nature  of  their  special  subjects,  less 
likely  than  the  others  to  secure  remunerative  sale ; 
and  any  deficiencies  accruing  from  the  publication 
of  these  have  to  be  made  up  from  the  sale  of  the 
more  popular  volumes. 

Under  any  "open  publishing"  scheme,  however, 
the  competing  "  reprinters"  would  pick  out  for  their 
competing  editions  the  more  salable  books,  securing 
on  these  the  advantage  of  the  initiative,  the  editorial 
skill,  and  the  advertising  of  the  original  publisher, 
and,  in  part  at  least,  also,  of  the  prestige  of  the 
series.     The  curtailing  or  destroying  altogether  of 


72  THE   QUESTION   OF   COPYRIGHT. 

the  profits  on  these  more  popular  volumes  would,  of 
course,  lessen  to  a  corresponding  extent  the  ability 
of  the  original  publisher  to  carry  to  completeness 
the  plan  of  his  series  by  including  in  it  subjects 
which,  however  important  for  certain  readers  or 
certain  students,  were  not  calculated  to  secure  a 
remunerative  sale.  Upon  this  class  of  readers  the 
plan  of  "open  publishing"  would  therefore  bring 
loss  and  deprivation  as  surely  as  upon  the  publishers. 

Responsible  publishers,  who  fulfill  strictly  their 
engagements  with  authors,  and  whose  aim  it  is  to 
present  effectively  to  the  public  complete  and  de- 
cently printed  books,  must  naturally  object  to  a 
measure  which  would  put  the  business  of  reprint- 
ing on  the  basis  of  a  cut-throat  competition,  and 
which  would  give  such  material  advantages  to  the 
more  unscrupulous  dealers  who  were  oblivious  of 
their  obligations  either  to  the  authors  or  the  public. 

I  take  the  position  that  there  is  an  impertinence 
in  the  suggestion  of  the  government's  undertaking 
to  decide  either  for  the  author  at  what  rate  he 
should  be  paid,  or  for  the  publisher  by  what  ma- 
chinery the  payments  should  be  made.  It  is  also 
absurd  to  assume  that  it  would  be  either  proper  or 
practicable  to  make  the  rate  of  payment  the  same 
for  all  grades  of  authors  and  for  all  classes  of  books  ; 
while  there  is  no  more  propriety  in  having  the  gov- 
ernment supervise  the  business  of  the  publisher  by 
such  a  "  bell-punch  "  device,  than  there  would  be  in 
instituting  similar  government  supervision  for  any 
other  classes  of  business  in  which  trust  interests  are 
involved. 


THE   PEARSALL-SMITH    SCHEME.  H 

With  reference  to  this  plan  for  legalized  open  re- 
printing, the  experienced  publisher,  W.  H.  Apple- 
ton,  wrote  in  1872  : 

"The  first  demand  of  property  is  for  security,  .  .  .  and  to 
publish  a  book  in  any  real  sense — that  is,  not  merely  to  print  it,  but 
to  make  it  well  and  widely  known,  requires  much  effort  and  larger 
expenditure,  and  these  will  not  be  invested  in  a  property  which  is 
liable  to  be  destroyed  at  any  moment.  Legal  protection  would  put 
an  end  to  evil  practices,  make  property  secure,  business  more  legiti- 
mate, and  give  a  new  vigor  to  enterprise  ;  nor  can  a  policy  which  is 
unjust  to  the  author,  and  works  viciously  in  the  book-trade  be  the 
best  for  the  public.  The  publisher  can  neither  afford  to  make  the 
book  so  thoroughly  known,  nor  can  he  put  it  at  so  low  a  price  as  if 
he  could  count  upon  a  permanent  and  undisturbed  control  of  its 
sales.  Many  valuable  books  are  not  reprinted  at  all,  and  therefore  are 
to  be  had  only  at  English  prices,  for  the  same  reason,  that  publishers 
are  cautious  about  risking  their  capital  in  unprotected  property." 

The  arguments  in  favor  of  this  plan  of  legalizing 
open  reprinting  of  foreign  works  would  apply  of 
course  with  equal  reasonableness  to  the  legalizing 
of  open  reprinting  of  domestic  books,  and  to  the 
depriving  of  American,  as  well  as  foreign,  writers 
of  their  rights  of  contract,  and  of  the  control  of 
the  property  interests  in  their  productions.  Such 
a  system  would  make  of  home  copyright,  and  of 
any  copyright,  a  farce  and  an  absurdity. 

None  of  the  objections  above  presented  could,  of 
course,  be  obviated  in  any  way  by  the  only  new 
suggestion  in  Mr.  Smith's  scheme,  namely,  the  col- 
lection of  the  author's  royalties  by  means  of  stamps, 
an  idea  which  has  possibly  been  suggested  by  the 
use  of  stamps  at  different  times  by  the  government 
to  collect  the  taxes  on  beer  sold  in  barrels,  and  on 
patent  medicines  sold  in  bottles. 


74  THE   QUESTION   OF   COPYRIGHT. 

The  supervision  of  the  manufacture  and  sale  of 
these  articles  is,  however,  a  simple  matter  compared 
with  what  would  be  necessary  for  the  control  of  the 
manufacture  and  sale  of  books;  but  for  the  proper 
care  of  the  government  interests  a  large  force  of 
expensive  inspectors  has  always  been  required.  I 
doubt  whether  the  probable  return  to  foreign  au- 
thors from  their  American  sales  would  warrant 
them  in  the  expenditure  required  to  keep  up  a 
force  of  officials  adequate  to  supervise  bookselling 
throughout  the  continent. 

In  each  large  brewery,  for  instance,  a  revenue  in- 
spector is  always  stationed  to  keep  a  check  on  the 
numbers  of  barrels  produced  and  on  the  proper  use 
of  the  excise  stamps  for  these.  Under  Mr.  Smith's 
scheme,  it  would  be  in  order  for  "  literature  inspect- 
ors "  (paid  by  the  foreign  authors)  to  be  stationed 
in  the  office  of  each  American  publisher  to  check 
off  his  reprints. 

Responsible  publishers  would  assuredly  be  averse 
to  investing  any  considerable  sums  in  the  purchase 
from  abroad  of  supplies  of  the  proposed  stamps 
which  could  so  easily  be  counterfeited  by  irrespon- 
sible dealers  as  well  in  Canada  as  in  the  States. 
The  publication  or  the  reprinting  of  any  book  is 
more  or  less  of  a  lottery  (instead  of  being,  as  is  so 
often  delusively  calculated,  an  undertaking  in  which 
the  only  problem  is  the  division  of  the  profits). 
Under  this  scheme  the  publisher  would  be  obliged 
to  add  to  the  manufacturing  outlay  at  risk,  an  in- 
vestment in  an  advance  purchase  of  as  many  stamps 
as  he  believed  would  be  required  for  the  first  edition. 


THE   PEARSALL-SMITH   SCHEME.  75 

If  he  overestimated  the  sales  it  would  often  not  be 
an  easy  matter  to  return  the  surplus  stamps  and  get 
back  the  money  paid  for  them,  while  if  the  im- 
mediate demand  exceeded  the  estimate,  it  could 
easily  happen  that  sales  would  be  delayed  and  lost 
because  of  the  necessity  of  waiting  for  the  importa- 
tion of  a  further  supply  of  the  stamps. 

It  is,  of  course,  also  the  case  that  under  the  con- 
ditions of  bookselling  in  this  country,  books  are  in 
many  cases  sent  out  to  dealers  with  the  privilege  of 
returning,  once  or  twice  a  year,  unsold  copies.  The 
getting  back  of  these  copies  from  points  between 
Oregon  and  Texas  is  a  business  that  often  requires 
months,  and  the  adjustment  of  the  credit  for  stamps 
on  these  returned  copies,  and  on  the  copies  given 
to  the  press,  or  the  copies  (of  scientific  and  educa- 
tional works)  given  to  instructors,  would  constitute 
another  complication  for  the  bothered  publishers. 

American  authors  could  justly  object  to  this 
scheme  of  open  reprinting,  first,  because  if  offset 
with  a  reciprocal  measure  of  "  protection  "  for  Ameri- 
can works  abroad,  it  would  expose  them  to  all  the 
disadvantages  above  set  forth  of  lack  of  power  to 
select  their  agents,  lack  of  control  of  the  printing 
and  publishing  of  their  books,  expense  and  difficulty 
of  enforcing  their  collections,  and  certainty  of  loss 
through  the  use  of  forged  stamps ;  and,  second, 
because  the  business  of  reprinting  in  this  country 
would  be  left  in  the  present  condition  of  "  scramble  " 
and  cut-throat  competition,  and  the  difficulty  in  the 
way  of  securing  favorable  consideration  or  remuner- 
ative sale  for  American  books  (particularly  in  light 


y6  THE   QUESTION   OF   COPYRIGHT. 

literature),  while  the  market  is  full  of  "  cheap  and 
nasty  "  reprints,  more  or  less  incomplete,  of  similar 
foreign  works,  would  be  practically  as  great  as  at 
present. 

International  copyright  is  demanded,  as  it  seems 
almost  a  truism  to  say,  by  every  consideration  of 
national  honor,  and  of  the  highest  national  advan- 
tage, and  it  is  assuredly  full  time  that  the  United 
States  of  America  placed  itself  on  as  high  a  plane  of 
international  ethics  as  that  now  reached  by  the 
African  States  of  Liberia  and  Tunis,  which  have  re- 
cently united  in  the  Copyright  Convention  formu- 
lated at  Berne. 

If,  however,  Congress  will  bring  about  the 
arrangement  for  the  necessary  recognition  and 
protection  of  literary  property,  the  authors  and 
publishers  can  safely  be  left  to  adjust  between 
themselves  all  business  details,  such  as  rates  of 
compensation  and  methods  of  payment,  which 
details  are  properly  matters  of  private  contract. 

G.  H.  P. 

New  York,  Nov.  21st,  1877. 


VII. 

INTERNATIONAL    COPYRIGHT. 

Report  of  the  Hon.  W.  E.  Simonds,  of  Connecticut,  from  the 
House  Committee  on  Patents,  June  10,  1890. 

Mr.  Simonds,  from  the  Committee  on  Patents, 
submitted  the  following  report  (to  accompany  H. 
R.  10881): 

The  Committee  on  Patents,  to  whom  was  referred 
the  bill  (H.  R.  10254)  "To  amend  title  sixty,  chap- 
ter three,  of  the  Revised  Statutes  of  the  United 
States  relating  to  copyright,"  respectfully  report 
that  they  have  had  the  same  under  consideration. 
They  recommend  that  said  bill  be  tabled  and  that 
the  accompanying  substitute  bill  be  passed.  In 
this  connection  they  submit  comments  as  follows: 

THE   PROPOSITION   OF   THE   BILL. 

The  proposition  of  the  bill  is  simply  to  permit 
foreigners  to  take  American  copyright  on  the  same 
basis  as  American  citizens,  in  three  cases :  first, 
when  the  nation  of  the  foreigner  permits  copyright 
to  American  citizens  on  substantially  the  same  basis 
as  its  own  citizens  ;  second,  when  the  nation  of  the 
foreigner  gives  to  American  citizens  copyright  priv- 
ileges similar  to  those   provided   for  in   this   bill  ; 


?$  THE   QUESTION   OF   COPYRIGHT. 

third,  when  the  nation  of  the  foreigner  is  a  party  to 
an  international  agreement  providing  for  reciprocity 
in  copyright,  by  the  terms  of  which  agreement  the 
United  States  can  become  a  party  thereto  at  its 
pleasure. 

A  subsidiary  but  important  proposition  of  the  bill 
is  that  all  books  copyrighted  under  the  proposed 
act  shall  be  printed  from  type  set  within  the  United 
States,  or  from  plates  made  therefrom.  The  fol- 
lowing is  from  the  testimony  of  J.  L.  Kennedy, 
given  before  the  House  Judiciary  Committee,  Jan- 
uary 30,  1890,  in  behalf  of  the  International  Typo- 
graphical Union : 

Mr.  Oates.     "Why  do  the  printers  favor  this  bill  ? 

Mr.  Kennedy.  For  several  reasons.  The  first  and  principal 
reason  is  the  selfish  one.  How  rare  is  the  human  action  that  has 
not  selfishness  for  its  motive  force  !  Its  effect  as  a  law  will  be  given 
to  greatly  stimulate  book  printing  in  the  United  States.  A  vast 
amount  of  printing  that  naturally  belongs  here  (because  it  is  executed 
principally  for  this  market),  and  now  done  on  the  other  side,  will 
come  home  to  us.  Indeed,  it  has  been  conspicuously  stated  in  the 
London  Times  that  if  this  bill  becomes  a  law  the  literary  and  book 
publishing  centre  of  the  English  world  will  move  westward  from 
London  and  take  up  its  abode  in  the  city  of  New  York.  That 
would  be  a  spectacle  which  every  patriotic  American  might  con- 
template with  complacency  and  pride. 

The  Englishman  who  writes  books  for  the  money  he  can  get  out 
of  them,  as  well  as  the  fame — and  I  think  it  fair  to  presume  that  the 
great  majority  of  authors  are  actuated  by  both  of  those  motives — 
will  recognize  that  here  is  the  richest  market,  and  he  will  not  think 
it  a  hardship  to  comply  with  the  provisions  of  this  proposed  law  in 
view  of  the  substantial  benefit  it  is  to  him,  and  the  printers  do  not 
consider  it  a  hardship  to  require  of  him  that  he  shall  leave  upon  our 
shores  so  much  of  his  profits  at  least  as  will  pay  for  his  printing. 
The  American  author  who  goes  abroad  in  search  of  a  cheaper  pub- 
lishing market,  sending  his  shell-plates  over  here  to  be  mounted  and 


INTERNATIONAL  COPYRIGHT.  79 

to  have  his  presswork  done,  or  else  sending  the  printed  sheets  home 
to  be  bound  here,  thus  evading  the  heavier  duty  on  bound  books, 
will  also  be  compelled  to  patronize  home  industry  for  his  mechanical 
work.  In  short,  it  is  not  difficult  for  printers  to  see  that  such  a  law 
will  confer  inestimable  benefits  upon  their  own  and  allied  trades. 

THE  TERM    OF   COPYRIGHT. 

Under  the  existing  law  of  the  United  States 
copyright  is  granted  for  twenty-eight  years,  with 
the  right  of  extension  for  fourteen  more ;  in  all, 
forty-two  years.  The  bill  proposes  no  change  in 
that  respect.  The  term  of  copyright  in  other  coun- 
tries is  as  follows: 

Mexico,  in  perpetuity. 

Guatemala,  in  perpetuity. 

Venezuela,  in  perpetuity. 

Colombia,  author's  life  and  eighty  years  after. 

Spain,  author's  life  and  eighty  years  after. 

Belgium,  author's  life  and  fifty  years  after. 

Ecuador,  author's  life  and  fifty  years  after. 

Norway,  author's  life  and  fifty  years  after. 

Peru,  author's  life  and  fifty  years  after. 

Russia,  author's  life  and  fifty  years  after. 

Tunis,  author's  life  and  fifty  years  after. 

Italy,  author's  life  and  forty  years  after  ;  to  be  eighty  years  in  any 
event.     (See  later  chapter  in  this  volume.) 

France,  author's  life  and  fifty  years  after. 

Germany,  author's  life  and  thirty  years  after. 

Austria,  author's  life  and  thirty  years  after. 

Switzerland,  author's  life  and  thirty  years  after. 

Hayti,  author's  life,  widow's  life,  children's  lives,  and  twenty 
years  after. 

Brazil,  author's  life  and  ten  yeais  after. 

Sweden,  author's  life  and  ten  years  after. 

Roumania,  author's  life  and  ten  years  after. 

Great  Britain,  author's  life  and  seven  years  after  ;  to  be  forty-two 
years  in  any  event. 


8o  THE   QUESTION   OF  COPYRIGHT. 

Japan,  author's  life  and  five  years  after. 

South  Africa,  author's  life  ;  fifty  years  in  any  event. 

Bolivia,  author's  life. 

Denmark,  fifty  years. 

Holland,  fifty  years. 

The  verdict  of  the  world  declares  for  a  longer 
term  of  copyright  than  that  granted  by  the  United 
States  of  America.  (La  Propriety  Littdraire  et  Ar- 
tistique,  Paris,  1889.) 

LIBERALITY   TO   FOREIGNERS. 

Without  reference  to  international  agreements, 
every  one  of  the  twenty-six  countries  above  named 
permits  foreigners  to  take  copyright  on  the  same 
basis  as  its  own  citizens  except  Great  Britain.  That 
country  permits  foreigners  to  take  copyright  on  the 
same  basis  as  its  own  citizens,  provided  the  for- 
eigner is  at  the  time  of  publication  anywhere  within 
the  British  dominions,  which  expression  includes 
British  colonies  and  possessions  of  every  sort. 

An  alien  friend  temporarily  residing  in  the  British  dominions,  and 
consequently  owing  a  temporary  allegiance,  is  entitled  to  copyright 
in  any  work  which  he  publishes  here  whilst  so  residing,  however 
short  his  period  of  residence  may  be.  (Short's  Law  of  Copyright, 
p.  12.) 

By  Acts  of  Parliament  the  queen  is  empowered  to 
provide  for  copyright  of  an  international  character 
as  to  any  nation  which  will  reciprocate.  From  con- 
ditions herein  pointed  out  it  is  clear  that  the  queen 
is  thus  empowered  solely  with  reference  to  hoped- 
for  relations  with  the  United  States  of  America. 

The  United  States  alone  refuses  copyright  to  for- 
eigners, and,  alone  among  the  nations  of  the  earth, 


INTERNATIONAL   COPYRIGHT.  8 1 

refuses    reciprocity    in    copyright.      {La   Propria 
Litter  aire  et  Artistiqtte,  before  cited.) 

INTERNATIONAL   COPYRIGHT   AGREEMENTS. 

First  and  last  there  have  been  signed  about  a 
hundred  international  agreements  providing  for  rec- 
iprocity in  copyright,  the  general  nature  of  which  is 
illustrated  by  the  following  quotation  of  Article  II. 
of  the  agreement  made  at  the  Berne  International 
Copyright  Convention  of  September  9,  1886: 

Authors  within  the  jurisdiction  of  one  of  the  countries  of  this 
Union,  or  their  heirs,  shall  enjoy  in  the  other  countries  for  their 
works,  whether  they  are  or  are  not  published  in  one  of  these  coun- 
tries, the  rights  which  the  respective  laws  of  these  countries  now 
accord,  or  shall  subsequently  accord,  to  their  own  countrymen. 

The  international  copyright  agreements  of  France 
are:  With  Holland,  July  25,  1840  ;  Portugal,  April 
12,  1 85 1  ;  Great  Britain,  November  3,  185 1  ;  Bel- 
gium, August  22,  1852  ;  Spain,  November  15,  1853; 
Luxemburg,  July  6,  1856;  Russia,  April  6,  1861  ; 
Italy,  June  29,  1862;  Prussia,  August  2,  1862; 
Switzerland,  June  30,  1864;  Hanseatic  Cities, 
March  4,  1865  ;  Bavaria,  March  24,  1865  ;  Frank- 
fort-on-the-Main,  April  18,  1865  ;  Wurtemburg, 
April  24,  1865  ;  Baden,  May  12,  1865  ;  Saxony, 
May  26,  186$  ;  Mecklenburg-Schwerin,  June  9, 
1865  ;  Hesse,  June  14,  1865  ;  Hanover,  July  19, 
1865;  Monaco,  November  9,  1865;  Luxemburg, 
December  16,  1865;  Great  Britain,  August  II, 
1865;  Salvador,  June  2,  1880;  German  Empire, 
April  19,  1883;  Sweden  and  Norway,  February  15, 
1884;  Italy,  July  9,  1884;  Portugal,  July  II,  1886; 

6 


82  THE   QUESTION   OF   COPYRIGHT. 

Mexico,  November  27,  1886  ;  Bolivia,  September  8, 
1887. 

The  following  named  countries  have  signed  inter- 
national copyright  agreements  in  number  as  fol- 
lows :  German  Empire,  six  (the  German  states  had 
signed  many  prior  to  1871,  when  the  empire  was 
created) ;  Belgium,  six  ;  Bolivia,  six  ;  Ecuador,  one  ; 
Spain,  seven  ;  Great  Britain,  nineteen  ;  Italy,  ten  ; 
Luxemburg,  two  ;  Mexico,  one ;  Monaco,  one ; 
Holland,  three;  Portugal,  four;  Russia,  two;  Sal- 
vador, one ;  Sweden  and  Norway,  two ;  Switzer- 
land, five. 

The  agreement  made  at  the  Berne  Convention  of 
September  9,  1886,  was  signed  by  Great  Britain, 
France,  Germany,  Spain,  Holland,  Italy,  Switzer- 
land, Hayti,  Liberia,  and  Tunis.  January  11,  1889, 
the  following  seven  South  American  Governments 
signed  the  draft  of  the  agreement  made  at  the 
Montevideo  International  Copyright  Convention : 
the  Argentine  Republic,  Bolivia,  Brazil,  Chili,  Para- 
guay, Peru,  and  Uruguay.  The  United  States  of 
America,  standing  substantially  alone  in  that  regard 
among  the  civilized  nations  of  the  earth,  has  never 
entered  into  an  international  agreement  for  the  pro- 
tection of  copyright. 

We  were  represented  at  the  Berne  Convention  of 
1886  by  the  Hon.  Boyd  Winchester,  who  reported 
strongly  in  favor  of  the  United  States  giving  its 
adhesion  to  the  Berne  agreement ;  but  our  Govern- 
ment has  refrained  from  doing  so,  for  the  express 
reason  that  Congress  is  dealing  with  the  subject 
from  time  to  time.     The  transactions  in  this  regard 


INTERNATIONAL   COPYRIGHT.  83 

are  given  in  Executive  Document  No.  354  (Forty- 
ninth  Congress,  first  session),  and  Executive  Docu- 
ment No.  37  (Forty-ninth  Congress,  second  session). 
The  recent  International  American  Congress,  held 
in  the  city  of  Washington,  reported  the  following 
resolution: 

Whereas  the  International  American  Conference  is  of  the  opinion 
that  the  treaties  on  literary  and  artistic  property,  on  patents  and  on 
trade-marks,  celebrated  by  the  South  American  Congress  of  Monte- 
video, fully  guaranty  and  protect  the  rights  of  property  which  are 
the  subject  of  the  provisions  therein  contained : 

Resolved,  That  the  conference  recommend,  both  to  those  Govern- 
ments of  America  which  accept  the  proposition  of  holding  the  Con- 
gress, but  could  not  participate  in  its  deliberations,  and  to  those  not 
invited  thereto  but  who  are  represented  in  this  conference,  that  they 
give  their  adhesion  to  the  said  treaties. 

Jose  S.  Decoud, 

Delegate  from  Paraguay. 
Andrew  Carnegie, 

Delegate  from  United  States. 
Climaco  Calderon, 

Delegate  from  Colombia. 

The  United  States  of  America  must  give  in  its 
adhesion  to  international  copyright  or  stand  as  the 
literary  Ishmael  of  the  civilized  world. 

THE   AUTHOR'S    NATURAL   RIGHT. 

The  passage  of  the  proposed  act  is  demanded  by 
so-called  practical  reasons,  referred  to  hereinafter, 
which  do  not  deal  specially  with  the  right  and 
wrong  of  the  matter,  but  if  no  such  "  practical "  rea- 
sons existed  it  is  a  sufficient  reason  for  its  passage 
that  an  author  has  a  natural  exclusive  right  to  the 
thing  having  a  value  in  exchange  which  he  produces 


84  THE   QUESTION   OF   COPYRIGHT. 

by  the  labor  of  his  brain  and  hand.  No  one  denies 
and  every  one  admits  that  all  men  have  certain  nat- 
ural rights  which  exist  independently  of  all  written 
statutes. 

The  common  law  of  England — inherited  and 
adopted  to  a  great  extent  by  the  several  American 
States — is  built  upon  and  developed  out  of  the  nat- 
ural rights  of  men.  Our  Declaration  of  Independ- 
ence names  some  of  these  natural  rights,  calling 
them  self-evident,  as  the  basis  and  foundation  of  our 
right  to  national  existence,  to  wit,  life,  liberty,  and 
the  pursuit  of  happiness. 

An  equally  self-evident  natural  right  is  the  right 
of  property,  the  right  to  exclusively  possess  what- 
ever in  the  nature  of  property  a  man  rightfully 
acquires.  Civilized  and  uncivilized  people  alike 
recognize  this  right.  No  form  of  society,  no  matter 
how  rude,  no  matter  how  cultivated,  is  possible  with- 
out the  recognition  of  this  right  of  property.  What- 
ever has  value  in  exchange  is,  when  possessed, 
property.  The  visible  expression  of  an  author's 
mental  conception,  written  or  printed,  has  value  in 
exchange,  and  is  therefore  property  in  the  full  sense 
of  the  word.  No  better  title  to  an  article  of  prop- 
erty can  be  imagined  than  that  which  is  rooted  in 
the  creation  of  the  article ;  creation  gives  the 
strongest  possible  title.  The  author  holds  his  prop- 
erty by  this  first,  best,  and  highest  of  all  titles. 

The  principle  is  as  old  as  the  property  itself,  that  what  a  man  cre- 
ates by  his  own  labor,  out  of  his  own  materials,  is  his  own  to  enjoy 
to  the  exclusion  of  all  others.     {Drone  on  Copyright,  p.  4.) 

The  monopoly  of  authors  and  inventors  rests  on  the  general  senti- 


INTERNATIONAL   COPYRIGHT.  8$ 

ment  underlying  all  civilized  law,  that  a  man  should  be  protected  in 
the  enjoyment  of  the  fruits  of  his  own  labor.  (Copyright  article, 
Encyclopedia  Britannica.) 

The  right  of  an  author  to  the  production  of  his  mind  is  ac- 
knowledged everywhere.  It  is  a  prevailing  feeling,  and  none  can 
doubt  it,  that  a  man's  book  is  his  book — his  property.  (Daniel 
Webster,  6  Peters'  Reports,  653.) 

The  author  cannot  enjoy  the  value  in  exchange 
of  his  property  if  others  reproduce  the  visible  ex- 
pression of  his  mental  conception  without  his  per- 
mission. To  do  so  is  to  appropriate  his  valuable 
thing  without  giving  value  in  exchange.  The  au- 
thor's right  is  incorporeal,  but  it  is  not  a  small  thing 
because  incorporeal.  Milton's  Paradise  Lost,  Haw- 
thorne's Scarlet  Letter,  and  Shakespeare's  Hamlet 
suffice  for  evidence  on  that  point.  It  is  not  a 
unique  kind  of  property  because  incorporeal.  The 
major  part  of  the  wealth  of  the  world  is  incorporeal. 
H.  D.  Macleod,  in  his  article  on  copyright  in  the 
Political  Encyclopedia,  says:  "it  is  probable  that 
nineteen-twentieths  of  existing  wealth  is  in  this 
form  ; "  the  franchises  of  ferries,  railways,  telegraph 
and  telephone  companies,  patents,  trade-marks, 
good-will,  shares  in  incorporated  companies,  and 
annuities  of  all  sorts  are  familiar  instances  of  incor- 
poreal property. 

The  courts  of  the  several  States,  as  well  as  the 
United  States  Supreme  Court,  admit  the  author's 
natural  exclusive  right  to  his  intellectual  property, 
in  that  they  are  unanimous  in  holding  that  the  au- 
thor has  a  natural,  exclusive,  and  perpetual  right  in 
the  visible  expression  of  his  mental  conception  so 
long  as  it  is  expressed  in  written  words. 


86  THE   QUESTION   OF   COPYRIGHT. 

Two  principles  are  settled  in  English  and  American  jurisprudence: 
At  common  law  the  owner  of  an  unpublished  literary  composition  has 
an  absolute  property  therein.     {Drone  on  Copyright,  p.  101.) 

When  a  man,  before  uninformed  in  the  matter, 
comes  to  understand  that  the  author  has  an  ad- 
mitted natural  and  exclusive  right  to  the  visible 
expression  of  his  mental  conception  when  that  con- 
ception is  expressed  in  written  words,  his  common 
sense  forbids  him  to  entertain  the  notion  that  he 
loses  such  right  by  expressing  the  conception  in 
printed  words.  The  admission  of  the  right  as  to 
written  words  settles  the  question. 

It  is  sometimes  attempted  to  stigmatize  copy- 
right as  monopoly,  and  writers  of  loose  and  careless 
habit  sometimes  speak  of  copyright  as  monopoly. 
It  is  no  more  monopoly  than  is  the  ordinary  owner- 
ship of  a  horse  or  a  piece  of  land.  Blackstone  says 
that  a  monopoly  is — 

A  license  or  privilege  .  .  .  whereby  the  subject  in  general 
is  restrained  from  that  liberty  of  manufacturing  or  trading  which  he 
had  before. 

The  law  dictionaries  define  it  in  the  same  way. 
A  monopoly  takes  away  from  the  public  the  enjoy- 
ment of  something  which  the  public  before  pos- 
sessed. Neither  copyright  nor  patent  does  this,  for 
neither  can  be  applied  to  anything  which  is  not  new  ; 
neither  can  be  applied  to  anything  which  the  public 
before  possessed.  The  author  and  inventor  must 
produce  something  new  in  order  to  be  entitled  to 
copyright  or  patent.  Notwithstanding  this  allusion 
to  patents,  the  mistake  should  not  be  made  of  sup- 
posing that  patents  and   copyrights  stand  on  the 


INTERNATIONAL   COPYRIGHT. 


89 


same  basis  as  to  natural  exclusive  right,  for  they  u^f 
not ;  the  difference  between  them,  in  this  regard,  is 
radical. 

A  patent  covers  the  idea  or  principle  of  an  inven- 
tion ;  copyright  does  not  cover  the  author's  idea, 
but  only  the  language  in  which  he  clothes  the  idea; 
hence  arises  a  radical  difference  which  it  is  not  now 
necessary  to  discuss. 

THE   COMMON-LAW    RIGHT. 

As  has  been  already  remarked,  the  common  law 
of  England,  inherited  and  adopted,  to  a  great  ex- 
tent, by  the  several  American  States,  is  built  upon 
and  developed  out  of  the  natural  rights  of  man. 

The  common  law  of  England  always  recognized 
the  natural,  exclusive  right  of  an  author  to  the 
written  and  printed  expression  of  his  mental  con- 
ception from  the  time  when  printing  was  introduced 
into  England  by  Caxton,  in  1474.  From  1474  to 
1710  the  common-law  right  was  more  or  less  inter- 
fered with  at  times  by  Crown  grants  in  the  nature 
of  genuine  monopoly,  including  decrees  of  the  Star 
Chamber. 

April  10,  1710,  the  Statute  of  Anne,  so-called,  was 
passed.  It  gave  authors  of  works  then  existing  the 
sole  right  of  printing  the  same  for  twenty-one  years 
and  no  longer.  It  gave  to  authors  of  works  not 
then  printed,  and  to  their  assigns,  the  sole  right  for 
fourteen  years,  and  if  the  author  was  then  alive  he 
had  the  right  to  a  prolongation  for  fourteen  years 
more.  In  the  copyright  article  of  the  Political  En- 
cyclopedia, Macleod  correctly  says : 


86  THE   QUESTION   OF   COPYRIGHT. 

Tc  is  quite  impossible  to  read  this  act  without  seeing  that  it  dis- 
tinctly recognizes  copyright  as  existing  already,  and  independently  of 
the  act.  All  they  did  was  to  enact  certain  statutory  penalties  for 
its  infringement.  But  that,  by  a  well-known  rule  of  law,  in  no  way 
affected  proceedings  at  common  law.  We  have  seen  that  the  courts 
of  law  never  raised  the  slightest  doubt  as  to  the  existence  of  copy- 
right at  common  law.  We  shall  now  see  how  the  court  of  chancery 
regarded  it.  As  the  act  gave  twenty-one  years  for  old  copies  from 
April  10,  1710,  no  question  on  copyright  at  common  law  could  arise 
before  1731.  In  1735,  Sir  Joseph  Jekyll  granted  an  injunction  in 
the  case  of  Eyre  vs.  Walker,  to  restrain  the  defendant  from  printing 
The  Whole  Duty  of  Jlfan,  the  first  assignment  of  which  had  been 
made  in  December,  1657,  being  seventy-eight  years  before.  In  the 
same  year,  Lord  Talbot,  in  the  case  of  Matte  vs.  Falkner,  granted 
an  injunction  restraining  the  defendant  from  printing  Nelson's  fes- 
tivals and  Fasts,  printed  in  1703,  during  the  life  of  the  author,  who 
died  in  17 14.  In  1739  Lord  Hardwicke,  in  the  case  of  Tonson 
and  another  vs.  Walker,  otherwise  Stanton,  granted  an  injunction 
restraining  the  defendant  from  printing  Milton's  Paradise  Lost,  the 
copyright  of  which  was  assigned  in  1667,  or  seventy-two  years  be- 
fore. In  1752  Lord  Hardwicke,  in  the  case  of  Tonson  vs.  Walker 
and  Merchant,  granted  an  injunction,  restraining  the  defendants 
from  printing  Milton's  Paradise  or  Life  or  Notes.  All  this  time 
there  had  never  been  any  solemn  decision  by  the  King's  Bench  as  to 
the  existence  of  copyright  at  common  law,  or  as  to  how  it  was  affected 
by  the  statute  of  Anne.  But  the  court  of  chancery  never  granted  an 
injunction  unless  the  legal  right  was  clear  and  undisputed.  If  there 
had  been  any  doubt  about  it  they  would  have  sent  it  to  be  argued  in 
a  court  of  common  law. 

In  1769  the  question  came  before  the  Court  of 
King's  Bench  (the  court  of  last  resort,  the  House 
of  Lords  excepted)  in  the  case  of  Millar  vs.  Taylor 
(4  Burr.,  2303).  It  was  held — three  judges  in  the 
affirmative  to  one  in  the  negative — that  the  com- 
mon-law right  existed.  In  1774  the  question  again 
came  before  the  Court  of  King's  Bench  in  the 
case  of  Beckett  vs.  Donaldson  (4  Burr.,  2408),  and 


INTERNATIONAL   COPYRIGHT.  89 

it  was'  again  decreed  that  the  common-law  right 
existed.  The  case  was  immediately  appealed  to 
the  House  of  Lords  and  there  the  eleven  judges 
gave  their  opinions  as  follows  on  the  following 
points : 

(1)  Whether  at  common  law  an  author  of  any  book  or  literary 
composition  had  the  sole  right  of  first  printing  and  publishing  the 
same  for  sale,  and  might  bring  an  action  against  any  person  who 
printed,  published,  and  sold  the  same  without  his  consent  ?  On  this 
question  there  were  eight  judges  in  the  affirmative  and  three  in  the 
negative. 

(2)  If  the  author  had  such  right  originally,  did  the  law  take  it 
away  upon  his  printing  and  publishing  such  book  or  literary  com- 
position, and  might  any  person  afterward  reprint  and  sell  for  his 
own  benefit  such  book  or  literary  composition  against  the  will  of 
the  author?  This  question  was  answered  in  the  affirmative  by  four 
judges  and  in  the  negative  by  seven. 

(3)  If  such  action  would  have  lain  at  common  law  is  it  taken  away 
by  the  statute  of  8  Anne,  and  is  an  author  by  the  said  statute  pre- 
cluded from  every  remedy,  except  on  the  foundation  of  the  said 
statute  and  on  the  terms  of  the  conditions  prescribed  thereby  ?  Six 
of  the  judges  to  five  decided  that  the  remedy  must  be  under  the 
statute. 

(4)  Whether  the  author  of  any  literary  composition  and  his  assigns 
had  the  sole  right  of  printing  and  publishing  the  same  in  perpetuity 
by  the  common  law  ?  Which  question  was  decided  in  favor  of  the 
author  by  seven  judges  to  four. 

(5)  Whether  this  right  is  any  way  impeached,  restrained,  or  taken 
away  by  the  statute  of  8  Anne  ?  Six  to  five  judges  decided  that  the 
right  is  taken  away  by  the  statute. 

This  decision  is  squarely  to  the  effect  that  the 
common-law  right  was  in  full  force  up  to  the  pas- 
sage of  the  Statute  of  Anne,  April  10,  17 10.  There 
was  a  clear  preponderance  of  judges  to  this  effect, 
but  it  was  also  decided — six  judges  to  five — that  the 
Statute  of  Anne  took  away  the  common-law  right. 


90  THE   QUESTION   OF   COPYRIGHT. 

Lord  Mansfield,  as  one  of  the  judges  of  the  Court 
of  King's  Bench,  had  decided  that  the  Statute  of 
Anne  had  not  taken  away  the  common-law  right  ; 
as  a  peer,  he  refrained  from  voting  through  motives 
of  delicacy  ;  had  he  voted  in  the  House  of  Lords 
the  decision  of  the  Court  of  King's  Bench  that  the 
Statute  of  Anne  had  not  taken  away  the  common- 
law  right  would  have  stood  unreversed.  That  the 
common  law  of  England  had  always  recognized  the 
author's  natural  right  was  fully  established  by  these 
decisions.  To  show  that  the  common  law  gave 
copyright  is  to  establish  the  natural  right,  for  the 
common  law  is  built  upon  and  developed  out  of 
natural  right. 

COPYRIGHT   IN   THE   CONSTITUTION. 

The  clause  of  the  Constitution  of  the  United  States 
of  America  which  authorizes  the  grant  of  copyright 
is  to  be  found  in  Article  I.,  section  8 : 

The  Congress  shall  have  power  ...  to  promote  the  progress 
of  science  and  the  useful  arts  by  securing,  for  limited  times,  to  au- 
thors and  inventors,  the  exclusive  rights  to  their  respective  writings 
and  discoveries  ;  .  .  .  also  to  make  all  laws  which  shall  be  neces- 
sary and  proper  for  carrying  into  execution  the  foregoing  powers. 

The  object  stated  in  the  grant  is  "  to  promote  the 
progress  of  science  and  the  useful  arts."  The  state- 
ment of  the  object  has  nothing  to  do  with  the  ques- 
tion whether  the  Constitution  recognizes  the  au- 
thor's natural  rights.  The  use  of  the  word  secure 
instead  of  give  or  grant  is  some  recognition  of  the 
natural    ri^ht.      This    Constitution  was    formed   in 


INTERNATIONAL  COPYRIGHT.  9 1 

1787,  just  thirteen  years  after  the  House  of  Lords 
had  expressly  recognized  the  natural  right. 

The  well-informed  men  who  framed  the  Constitu- 
tion could  not  have  been  ignorant  of  that  decision 
of  the  House  of  Lords,  for  that  was  a  famous  de- 
cision of  widespread  interest  and  notoriety.  They 
were  framing  a  grant  of  delegated  powers  to  the  Gen- 
eral Government.  They  knew  that  such  of  the  States 
as  fully  adopted  the  common  law  adopted  with  it  the 
recognition  of  the  author's  natural  right.  It  seemed 
to  them  expedient  to  give  to  the  General  Govern- 
ment the  supreme  power  in  the  premises  "  for  limited 
times."  They  did  not  intend  to  affirm  or  deny  the 
natural  right. 

The  natural  inference  from  the  language  used,  in 
the  light  of  the  surrounding  facts,  is  that  they  knew 
of  the  natural  right,  the  common-law  right ;  that 
they  did  not  choose  to  meddle  with  it,  but  did  deem 
it  expedient  to  give  the  General  Government  su- 
preme power  in  the  premises  "  for  limited  times." 

Possibly  they  might  have  thought  that  a  natural 
right  necessarily  means  a  perpetual  right  ;  and  the 
United  States  Supreme  Court  in  dealing  with  the 
question,  as  referred  to  hereinafter,  may  have  been 
troubled  by  the  same  idea.  Natural  right  does  not 
necessarily  mean  perpetual  right.  In  all  forms  of 
society,  all  kinds  of  property  are  held  under  such 
conditions  and  limitations  as  society  deems  reason- 
able. 

Under  the  right  of  eminent  domain,  governments 
take  private  property  for  public  use  upon  suit- 
able remuneration,  when  public  necessity  and  con- 


92  THE  QUESTION  OF  COPYRIGHT. 

venience  demand  it.  In  some  cases  private  prop- 
erty is  taken  for  public  use  without  compensation, 
notably  when  a  man's  building  is  torn  down  to  pre- 
vent the  spread  of  a  conflagration.  The  disposition 
of  property  by  last  will  and  testament  is  regulated 
by  law.  In  England  the  lands  cannot  be  alienated 
from  the  eldest  son.  In  not  to  exceed  a  term  of 
one  hundred  years  the  entire  value  of  almost  every 
specific  piece  of  property  is  taken  from  the  owner 
by  the  public  in  the  form  of  taxes,  in  return  for  the 
protection  and  security  which  society  gives. 

It  is  entirely  reasonable  that  the  law  should 
bring  a  copyright  to  an  end  at  the  expiration  of  a 
term  of  years — this,  especially,  in  view  of  the  fact 
that  it  is  not  usual  to  tax  copyrights  from  year  to 
year.  It  cannot  be  reasonably  maintained  that  the 
premise  of  natural  right  necessarily  leads  to  the 
conclusion  of  perpetuity. 

COMMON-LAW    RIGHT   IN   THE   UNITED    STATES. 

It  is  universally  conceded  that  wherever  the  com- 
mon law  exists  in  the  several  American  States,  it  is 
derived  from  and  is  identical  with  the  English  com- 
mon law.  It  has  been  shown,  beyond  question, 
that  English  common  law  recognizes  the  author's 
natural  right.  It  follows  as  a  necessary  conclusion 
that  the  American  common  law,  wherever  it  exists, 
gives  copyright,  and  recognizes  the  author's  natural 
right. 

Connecticut  passed  a  copyright  law  in  January, 
1783  ;  Massachusetts,  in  March,  1783  ;  Virginia,  in 
1785,  and  New  York,  in   1786.     They  all  recognize 


INTERNATIONAL   COPYRIGHT.  93 

the  pre-existing  common-law  right,  the  exclusive 
natural  right.  It  has  been  supposed  that  the 
United  States  Supreme  Court  decided  that  the 
common  law  does  not  give  copyright  in  the  United 
States,  in  the  case  of  Wheaton  vs.  Peters  (8 
Peters  Reports,  591),  decided  in  A.D.  1834.  Such 
is  not  the  fact.  The  opinion  in  that  case  decided 
only  two  points  connected  with  this  question,  to 
wit :  (1)  that  the  United  States,  as  a  nation,  has  no 
common  law,  and  (2)  that  as  to  Pennsylvania,  where 
the  controversy  in  question  arose,  there  was  no 
proof  that  the  common  law  had  been  adopted. 
This  is  what  the  United  States  Supreme  Court  said 
in  that  case  : 

It  is  clear  there  can  be  no  common  law  of  the  United  States. 
The  Federal  Government  is  composed  of  twenty-four  sovereign  and 
independent  States  ;  each  of  which  may  have  its  local  usages,  cus- 
toms, and  common  law.  There  is  no  principle  which  pervades  the 
Union  and  has  the  authority  of  law  that  is  not  embodied  in  the 
Constitution  or  laws  of  the  Union.  The  common  law  could  be 
made  a  part  of  our  Federal  system  only  by  legislative  adoption. 

It  is  insisted  that  our  ancestors,  when  they  migrated  to  this 
country,  brought  with  them  the  English  common  law  as  a  part  of 
their  heritage. 

That  this  was  the  case  to  a  limited  extent  is  admitted.  No  one 
will  contend  that  the  common  law,  as  it  existed  in  England,  has  ever 
been  in  force  in  all  its  provisions  in  any  State  in  this  Union.  It  was 
adopted  so  far  only  as  its  principles  were  suited  to  the  condition  of 
the  colonies  ;  and  from  this  circumstance  we  see  what  is  common 
law  in  one  State  is  not  so  considered  in  another.  The  judicial  de- 
cisions, the  usages  and  customs  of  the  respective  States,  must  deter- 
mine how  far  the  common  law  has  been  introduced  and  sanctioned 
in  each. 

In  the  argument  it  was  insisted  that  no  presumption  could  be 
drawn  against  the  existence  of  the  common  law  as  to  copyrights  in 


94  THE   QUESTION   OF   COPYRIGHT. 

Pennsylvania,  from  the  fact  of  its  never  having  been  asserted  until 
the  commencement  of  this  suit. 

It  may  be  true,  in  general,  that  the  failure  to  assert  any  particular 
right  may  afford  no  evidence  of  the  non-existence  of  such  right.  But 
the  present  case  may  well  form  an  exception  to  this  rule. 

If  the  common  law,  in  all  its  provisions,  has  not  been  introduced 
into  Pennsylvania,  to  what  extent  has  it  been  adopted  ?  Must  not 
this  court  have  some  evidence  on  this  subject  ?  If  no  right,  such  as 
is  set  up  by  the  complainants,  has  heretofore  been  asserted,  no  cus- 
tom or  usage  established,  no  judicial  decision  been  given,  can  the 
conclusion  be  justified  that,  by  the  common  law  of  Pennsylvania,  an 
author  has  a  perpetual  property  in  the  copyright  of  his  works?  (8 
Peters,  658.) 

Mr.  Drone,  in  his  book  on  copyright,  says  all  that 
is  necessary  to  be  said  about  this  remarkable  decis- 
ion wherein  the  dissenting  opinion  has  easily  the 
best  of  the  argument  : 

The  judgment  of  the  court,  as  has  been  seen,  was  based  on  two 
grounds  :  (1)  That  the  common  law  of  England  did  not  prevail  in 
the  United  States.  (2)  That  in  England  it  had  been  decided  that 
the  common-law  property  in  published  works  had  been  taken  away  by 
statute.  The  first  position  rested  on  a  foundation  of  sand,  which 
has  since  been  swept  away.  "  The  whole  structure  of  our  present 
jurisdiction,"  said  Mr.  Justice  Thompson  in  his  dissenting  opinion, 
"stands  upon  the  original  foundation  of  the  common  law."  The 
doctrine  is  now  well  settled  in  this  country  that  a  complete  property 
in  unpublished  works  is  secured  by  the  common  law.  This  was 
admitted  by  the  Supreme  Court  in  Wheaton  vs.  Peters.  It  has 
since  been  repeatedly  affirmed  by  the  same  tribunal,  by  the  circuit 
court  of  the  United  States,  and  by  every  State  court  in  which  the 
question  has  been  raised.  If  the  common  law  thus  prevails  in  the 
United  States  with  reference  to  unpublished  productions,  there  is  no 
principle,  independently  of  the  statute,  by  which  it  can  be  held  not 
to  prevail  in  the  case  of  published  works.     (Drone  on  Copyright,  47.) 

In  right  reason  and  sound  logic  the  common  law 


INTERNATIONAL  COPYRIGHT.  95 

does  exist  in  the  United  States,  and  that  existence 
is  conclusive  of  the  existence  of  the  natural  right. 

THE   WRONG  TO   AMERICAN   AUTHORS. 

The  Constitution  authorizes  copyrights  in  order 
"  to  promote  the  progress  of  science  and  the  useful 
arts,"  primarily  within  the  United  States.  Our 
present  procedure  is  a  hinderance  to.  the  "  progress 
of  science  and  the  useful  arts"  in  the  United  States 
in  more  ways  than  one. 

One  way  in  which  our  present  practice  hinders 
the  progress  of  science  and  the  useful  arts  within 
our  borders  is  by  the  repression  of  the  development 
of  American  intellectual  life,  by  the  repression  of 
the  home  production  of  literary  works  through  sub- 
jecting native  authors  to  a  kind  of  competition  to 
which  no  other  class  of  American  workers  is  sub- 
jected, a  kind  of  competition  which  is  ruinous  and 
destructive. 

American  authors  are  subjected  to  untrammeled 
competition  with  English  authors  who  do  not  re- 
ceive a  farthing  for  their  labor.  All  stories  compete 
with  all  other  stories  so  far  as  the  demand  of  the 
story-reading  public  is  concerned  ;  and  the  story- 
reading  public  of  America  comprises  many  millions 
of  people.  An  American  publisher  can,  within  the 
pale  of  the  law,  appropriate  and  publish  an  English 
story  without  remuneration  to  the  English  writer. 
It  is  well  and  widely  known  that  some  American 
publishers  do  this  on  a  large  scale.  Since  such 
American  publishers  pay  nothing  to  the  English 
authors  whose    stories   they  appropriate  and    pub- 


g6  THE   QUESTION  OF   COPYRIGHT. 

lish,  other  American  publishers  cannot  afford  to  pay 
American  authors  for  writing  stories  except  in  those 
comparatively  rare  cases  where  the  American  author 
has  already  acquired  an  established  reputation. 

The  new  American  author  has  no  chance  worthy 
of  the  name  for  getting  a  start,  and  the  sale  of  the 
works  of  American  authors  of  established  reputation 
is  to  a  degree,  prevented  by  this  competition,  in 
which  everything  is  against  the  American  author. 
It  is  not  to  the  point  to  refer  to  persons  engaged  in 
other  kinds  of  business,  the  profession  of  law  for 
instance,  and  to  say  that  competition  exists  there 
as  everywhere  else,  that  the  bright  men  succeed  and 
the  dullards  fail.  The  parallel  is  wholly  wanting. 
If  American  lawyers  had  to  compete  not  only  with 
each  other,  but  also  with  a  numerous  class  of  lawyers 
receiving  nothing  for  their  labor,  the  parallel  would 
be  complete,  and  the  American  lawyer  would  need 
no  extended  argument  to  convince  him  of  the  un- 
fairness of  the  arrangement.  The  American  people 
in  general  have  no  adequate  idea  of  the  extent  of 
this  mischief.  Mr.  Henry  Holt,  a  well-known  New 
York  city  publisher,  said  upon  this  point  before  the 
Senate  Committee  on  Patents  in  1886: 

The  effect  of  this  state  of  affairs  on  the  opportunities  of  Ameri- 
can authors  to  get  into  print  or  stay  in  print  is  very  disastrous.  I 
have  unused  manuscripts  in  my  safe  and  have  lately  sent  back  manu- 
scripts which  ought  to  have  been  published,  but  I  was  afraid  to 
undertake  the  publication  ;  the  market  will  not  support  them.  I 
lately  published,  I  think,  the  most  important  American  work  of  fic- 
tion with  a  single  exception  that  I  ever  published.  The  critics  re- 
ceived it  with  praise.  I  had  to  write  the  author  the  other  day  that 
it  had  been  a  financial  failure.     She  is  a  poor  girl  of  great  talent. 


INTERNATIONAL   COPYRIGHT.  97 

Her  old  parents  are  living,  and  she  has  to  support  them  and  an  old 
family  servant. 

At  the  same  hearing  Mr.  Dana  Estes,  of  the  well- 
known  Boston  firm  of  Estes,  Lauriat  &  Co.,  said: 

It  has  been  said  by  some  gentlemen  that  the  flood  of  British 
reprints  has  a  discouraging  effect  upon  American  authorship.  I  will 
add  my  mite  to  that  statement.  For  two  years  past,  though  I  belong 
to  a  publishing  house  that  emits  nearly  $1,000,000  worth  of  books 
per  year,  I  have  absolutely  refused  to  entertain  the  idea  of  publishing 
an  American  manuscript.  I  have  returned  many  scores,  if  not  hun- 
dreds, of  manuscripts  of  American  authors,  unopened  even,  simply 
from  the  fact  that  it  is  impossible  to  make  the  books  of  most 
American  authors  pay,  unless  they  are  first  published  and  acquire 
recognition  through  the  columns  of  the  magazines.  Were  it  not  for 
that  one  saving  opportunity  of  the  great  American  magazines  which 
are  now  the  leading  ones  of  the  world  and  have  an  international  repu- 
tation and  circulation,  American  authorship  would  be  at  a  still  lower 
ebb  than  it  is  at  present.  Take,  for  instance,  an  author  of  eminent 
genius  who  has  just  arisen.  I  refer  to  Charles  Egbert  Craddock — 
Miss  Murfree.  Had  her  manuscript  been  offered  to  any  one  of 
half  a  dozen  American  publishers  it  is  probable  it  would  have  been 
refused.  She  got  an  entering  wedge  by  having  her  articles  published 
in  a  magazine  and  sprang  into  a  world-wide  reputation  at  once. 
How  many  of  these  "  mute  inglorious  Miltons"  there  are  in  the  manu- 
scripts, tons  of  manuscripts,  scattered  about  the  country,  I  do  not 
know,  but  I  venture  to  say  there  are  a  good  many. 

Sir  Henry  Maine  said  of  the  American  people  in 
his  book  on  Popular  Government  that  their  "  neglect 
to  exercise  their  power  for  the  advantage  of  foreign 
writers  has  condemned  the  whole  American  com- 
munity to  a  literary  servitude  unparalleled  in  the 
history  of  thought." 

The  mischief  that  is  being  wrought  upon  Amer- 
ican intellectual  life  of  the  literary  sort,  in  this  man- 


98  THE   QUESTION   OF   COPYRIGHT. 

ner,  is  very  great.     It  is  none  the  less  real  because 
it  cannot  be  accurately  stated  in  dollars  and  cents. 

ENGLISH    MARKET   FOR   AMERICAN   AUTHORS. 

American  authors  of  established  reputation  would 
be  largely  benefited  by  any  sort  of  international 
copyright  with  England.  English  publishers  now 
appropriate  the  stories  of  American  writers  as 
American  publishers  appropriate  the  stories  of 
English  authors.  Reciprocity  in  copyright  would 
give  the  English  market  to  American  authors. 

VITIATED   EDUCATION   OF   AMERICANS. 

The  proposition  that  the  story-reading  public  of 
America  comprises  many  millions  of  people,  and 
that  the  major  part  are  youth,  is  easy  of  acceptance. 
That  they  are  having  offered  to  them  an  exhaustless 
stream  of  English  stories  written  by  authors  of  no 
special  repute,  is  equally  plain.  That  these  stories 
deal  with  kings  and  queens,  orders  of  nobility,  an 
established  church,  a  standing  army,  monarchical 
institutions  generally,  and  with  English  manners, 
scenes,  customs,  and  social  usages  is  almost  a  matter 
of  necessity.  Probably  a  large  portion  of  these 
stories  deal  with  some  tale  of  seduction. 

The  good  stories  of  England  were  long  since  ex- 
hausted by  the  American  reprinters,  and  as  a  con- 
sequence we  are  having  poured  out  upon  us  an  un- 
stinted flood  of  printed  stuff,  often  nasty,  still  oftener 
weak  and  silly,  and  always  foreign  in  tone,  senti- 
ment, and   description.      In   the    aggregate    these 


INTERNATIONAL   COPYRIGHT.  99 

stories  constitute  a  powerful  means  of  undesirable 
education,  as  well  as  of  vitiation  of  American  taste ; 
and  this  force  is  exerted  more  largely  than  other- 
wise upon  minds  and  morals  which  are  in  the  plastic 
and  formative  stage.  It  is  entirely  true  that  many 
of  the  cheap  American  reprints  are  not  stories  and 
that  many  of  the  reprinted  English  stories  are  good 
stories,  but  these  are  an  exception  to  the  general 
rule,  and  such  exceptions  constitute  a  small  per- 
centage of  the  whole  ;  the  healthy  part  bears  about 
the  same  ratio  to  the  unhealthy  that  the  nutritive 
element  in  a  glass  of  strong  beer  bears  to  the  baleful 
part.  Mr.  Henry  Holt,  the  New  York  publisher 
already  mentioned,  said  upon  this  point  before  the 
Senate  committee  in  1886: 

It  is  a  vastly  important  subject,  this  subject  of  the  prosperity  of 
American  authors.  It  is  a  subject  that  reaches  to  the  foundation  of 
our  civilization.  It  is  the  question  whether  we  are  to  continue  to 
have  an  American  literature — for,  as  you  all  know,  American  litera- 
ture is  languishing  even  now — the  question  whether  outside  of  the 
daily  and  periodical  press  we  are  to  derive  our  ways  of  thinking,  our 
ideal  of  life  and  politics,  from  alien,  unsympathetic  sources.  But 
this  is  not  the  whole  question.  It  is  rapidly  becoming  a  question 
whether,  with  a  few  rare  exceptions,  we  are  going  to  have  any  seri- 
ous books  at  all. 

Thought,  morals,  and  education  are  the  secret 
springs  of  natural  life.  We  are  allowing  them  to  be 
contaminated  at  their  sources. 

BARRING   OUT   GOOD    LITERATURE. 

Another  of  the  ways  in  which  our  present  prac- 
tice hinders  the  "  progress  of  science  and  the  useful 


IOO  THE   QUESTION   OF  COPYRIGHT. 

arts "  in  the  United  States  is  by  barring  out  the 
really  useful  literature  of  England,  a  thoroughly 
healthy  mental  and  moral  pabulum.  As  regards 
works  on  law,  theology,  medicine,  governmental  sci- 
ence, political  economy,  physical  science,  art,  biog- 
raphy, history,  travel,  language,  education,  and  the 
like,  England  is  probably  more  prolific  in  eminently 
useful  books,  in  proportion  to  her  population,  than 
any  other  country  in  the  world.  Unlike  many  of 
her  stories,  these  have  no  special  tone  which  is  for- 
eign to  American  institutions.  It  would  be  a  great 
practical  blessing  for  the  American  people  if  the 
great  mass  of  these  publications  were  promptly  re- 
produced in  America.  They  are,  however,  precisely 
the  kind  of  books  which  will  never  be  reprinted  here, 
except  to  a  very  small  extent,  without  the  protec- 
tion of  copyright. 

Almost  every  such  work,  separately  considered, 
appeals  to  a  limited  class  only.  The  republication 
of  one  of  them  involves,  as  a  rule,  a  very  consider- 
able outlay.  If  reprinted  at  all,  it  must  be  in  the 
shape  of  books  well  printed  on  good  paper,  well 
bound,  and  fit  for  preservation  in  a  library.  No 
publisher  dare  undertake  the  necessary  outlay — the 
publication  of  a  book  always  being  an  experiment, 
financially — unless  he  is  sure  he  can  have  the  whole 
limited  field  to  himself.  One  effect  which  may  con- 
fidently be  expected  from  the  passage  of  such  a  bill 
as  is  now  proposed  is  the  republication  here  of  the 
great  volume  of  English  books  of  the  class  now 
under  discussion  which  are  now  sealed  books  to  the 
great  mass  of  the  American  people. 


INTERNATIONAL  COPYRIGHT.  IOI 

CHEAPENING   THE   PRICE   OF   BOOKS. 

Still  another  way  in  which  our  present  practice 
hinders  the  "progress  of  science  and  the  useful 
arts"  in  the  United  States  is  by  preventing  the 
cheapening  of  the  prices  of  good  and  desirable 
books.  By  "  good  and  desirable  books  "  is  meant 
all  manner  of  books,  except  the  very  cheap 
paper  covered  or  no-covered  reprints  of  English 
stories. 

International  copyright  between  Great  Britain 
and  the  United  States  will  open  the  American  book 
market  to  English  authors  and  English  publishers. 
This  can  mean  nothing  less  than  the  addition  of  an 
enormous  mass  of  competition  to  the  existing  com- 
petition in  American  book  publishing.  This  added 
competition  must,  in  the  nature  of  things,  cheapen 
the  price  of  all  books,  those  of  American  origin  and 
those  of  English  origin  alike.  It  is  the  sure  effect 
of  competition  to  reduce  prices.  It  will  never  be 
possible  to  take  a  backward  step  in  international 
copyright  after  the  American  public  once  feels  this 
effect  of  such  a  law  as  is  now  proposed. 

The  ordinary  mode  of  attempting  to  show  that 
we  get  books  cheaper  because  of  the  absence  of  in- 
ternational copyright  is  to  exhibit  a  list  of  English 
books  published  at  a  high  price  and  a  parallel  list  of 
cheap  American  reprints  of  the  same.  It  is  quite 
as  easy  to  exhibit  a  list  of  English  books  published 
at  a  high,  price  and  a  parallel  list  of  cheap  English 
reprints  of  the  same.  It  is  also  quite  as  easy  to 
exhibit    a  list   of  American    books    published  at  a 


102  THE   QUESTION   OF   COPYRIGHT. 

comparatively  high  price  and  a  parallel  list  of  cheap 
American  reprints  of  the  same. 

Many  English  books  are  first  published  at  a  high 
price  to  be  bought  almost  solely  by  the  English  cir- 
culating libraries,  and  when  the  freshness  is  worn 
off  excellent  shilling  editions  of  the  same  appear  at 
the  English  railway  book-stalls.  American  books 
which  prove  to  be  a  success  are  likewise  reproduced 
subsequently  in  the  cheapest  form  consistent  with 
good  paper  and  good  print.  The  exhibition  of  a 
list  of  English  books  published  at  a  high  price  and 
a  parallel  list  of  cheap  American  reprints  of  the 
same,  for  the  purpose  of  showing  that  the  absence 
of  international  copyright  gives  us  cheap  books,  if 
done  with  full  knowledge  is  an  attempt  at  deceit. 

That  "  the  selling  price  of  a  book  depends,  not 
on  the  copyright,  but  on  the  extent  of  the  market 
that  can  be  assured  for  it,"  is  a  trade  maxim  settled 
beyond  dispute.  A  very  desirable  and  certain  re- 
sult of  international  copyright  is  stated  as  follows, 
in  the  words  of  George  Haven  Putnam,  the  well- 
known  American  publisher : 

An  international  copyright  will  render  practicable  a  large  number 
of  international  undertakings  which  cannot  be  ventured  upon  with- 
out the  assured  control  of  several  markets.  The  volumes  for  these 
international  series  will  be  secured  from  the  leading  writers  of  the 
world — American,  English,  and  Continental — and  the  compensation 
paid  to  these  writers,  together  with  the  cost  of  the  production  of 
illustrations,  maps,  tables,  etc.,  will  be  divided  among  the  several 
editions.  The  lower  the  proportion  of  this  first  outlay  to  be  charged 
to  the  American  edition,  the  lower  the  price  at  which  this  can  be 
furnished  ;  and  as  the  publisher  secures  the  most  satisfactory  returns 
from  large  sales  to  a  wider  circle,  the  lower  the  price  at  which  it  will 
be  furnished.     It  would,  perhaps,  not  be  quite  correct  to  say  that 


INTERNATIONAL  COPYRIGHT.  103 

these  international  series  would  be  cheaper  than  at  present,  for 
there  are,  as  yet,  but  few  examples  of  them,  but  it  is  the  case  that, 
by  means  of  such  series  (only  adequately  possible  under  international 
copyright),  American  readers  will  secure  the  best  literature  of  con- 
temporary writers  at  far  lower  prices  than  can  ever  otherwise  be 
practicable. 

France  and  Germany  are  thoroughly  under  the 
operation  of  international  copyright,  and  books  are 
much  cheaper  there  than  in  the  United  States  ;  the 
fact  is  not  accounted  for  by  the  difference  in  labor 
cost,  for  the  one  occupation  of  the  printer  is  pre- 
cisely the  occupation  wherein  labor  cost  is  most 
nearly  the  same  here  and  abroad. 

This  one  inevitable  result  of  international  copy- 
right, the  cheapening  of  the  great  mass  of  all  real 
books,  easily  outweighs  the  sole  objection  which  it 
is  possible  to  maintain  against  international  copy- 
right, to  wit,  that  it  will  increase  by  a  few  cents  the 
prices  of  the  cheapest  reprints  of  English  stories. 

THE   CHEAP   REPRINTS. 

It  is  admitted  that  the  proposed  act,  or  any  other 
of  a  similar  nature,  will  raise  the  price  of  the  very 
cheap  reprints  of  English  stories  yet  to  be  written  a 
few  cents  apiece.  A  pamphlet  of  that  sort  now 
costing  twenty  cents  will  then  cost  twenty-five 
cents.  Of  the  additional  price,  two  cents  will  go 
to  the  author,  and  three  cents  will  go  into  better 
paper,  better  print,  and  better  binding.  For  the 
five  cents  of  increased  cost,  an  American  story  will 
be  furnished  oftener  than  an  English  story ;  an 
American  author  will  get  pay  for  his  labor,  and  the 


104  THE   QUESTION   OF   COPYRIGHT. 

reader  will  get  a  book  that  is  one  hundred  per  cent, 
better  than  the  old  one  in  paper,  print,  and  bind- 
ing. 

E.  P.  Roe's  Barriers  Burned  Away,  Amelia  E. 
Barr's  Bow  of  Orange  Ribbon,  Miss  Green's  The 
Leavenworth  Case,  and  Mrs.  Prentice's  Stepping 
Heavenward,  all  American  copyrighted  books,  well 
printed  on  good  paper,  well  bound  in  paper  covers, 
and  selling  at  twenty-five  cents  apiece,  are  fair  sam- 
ples of  what  will  take  place  along  the  whole  line 
of  American  fiction  if  this  bill  becomes  a  law.  This 
law  will  have  no  effect  on  the  literature  of  the  past. 

PATENT   INSIDES. 

It  is  sometimes  urged  that  country  newspapers 
will,  if  such  a  bill  as  this  becomes  a  law,  be  cut  off 
from  culling  from  foreign  newspapers  and  periodi- 
cals. Such  an  effect  is  not  possible  ;  it  is  not  prac- 
tically possible  to  copyright  foreign  newspapers  and 
periodicals  under  the  proposed  law  ;  it  requires  that 
the  two  copies  to  be  deposited  with  the  Librarian 
of  Congress  on  or  before  the  day  of  publication 
shall  be  printed  from  type  set  in  this  country,  or 
from  plates  made  therefrom ;  that  provision  practi- 
cally cuts  off  foreign  newspapers  and  periodicals 
from  American  copyright,  and  our  newspapers  will 
remain  free  to  cull  from  them  at  pleasure. 

ADVOCATES  OF  INTERNATIONAL  COPYRIGHT. 

In  1837  a  Senate  committee  composed  of  Clay, 
Webster,  Buchanan,  Preston,  and  Ewing,  of  Ohio, 


INTERNATIONAL   COPYRIGHT.  10$ 

made  a  report  upon  international  copyright  contain- 
ing the  following  language : 

That  authors  and  inventors  have,  according  to  the  practice  among 
civilized  nations,  a  property  in  the  respective  productions  of  their 
genius  is  incontestable,  and  that  this  property  should  be  protected  as 
effectually  as  any  other  property  is  by  law,  follows  as  a  legitimate 
consequence.  Authors  and  inventors  are  among  the  greatest  bene- 
factors of  mankind.  They  are  often  dependent  exclusively  upon 
their  own  mental  labors  for  the  means  of  subsistence,  and  are  fre- 
quently from  the  nature  of  their  pursuits,  or  the  constitution  of  their 
minds,  incapable  of  applying  that  provident  care  to  worldly  affairs 
which  other  classes  of  society  are  in  the  habit  of  bestowing.  These 
considerations  give  additional  strength  to  their  just  title  to  the  pro- 
tection of  the  law. 

It  being  established  that  literary  property  is  entitled  to  legal  pro- 
tection, it  results  that  this  protection  ought  to  be  afforded  wherever 
the  property  is  situated.  A  British  merchant  brings  or  transmits  to 
the  United  States  a  bale  of  merchandise,  and  the  moment  it  comes 
within  the  jurisdiction  of  our  laws  they  throw  around  it  effectual 
security.  But  if  the  work  of  a  British  author  is  brought  to  the 
United  States  it  may  be  appropriated  by  any  resident  here  and 
republished  without  any  compensation  whatever  being  made  to  the 
author.  We  should  be  all  shocked  if  the  law  tolerated  the  least 
invasion  of  the  rights  of  property  in  the  case  of  the  merchandise, 
whilst  those  which  justly  belong  to  the  works  of  authors  are  exposed 
to  daily  violation  without  the  possibility  of  their  invoking  the  aid  of 
the  laws. 

The  committee  think  that  this  distinction  in  the  condition  of  the 
two  descriptions  of  property  is  not  just,  and  that  it  ought  to  be 
remedied  by  some  safe  and  cautious  amendment  of  the  law. 

Now  follows  the  expressions  of  some  of  the  per- 
sons and  organizations  who  are  asking  for  interna- 
tional copyright  to-day.  The  list  includes:  (i)  Pres- 
ident Harrison ;  (2)  Ex-President  Cleveland ;  (3) 
144  leading  American  authors ;  (4)  Western  authors  ; 
(5)  Southern  authors  ;  (6)  American   musical   com- 


106  THE   QUESTION   OF   COPYRIGHT. 

posers ;  (7)  60  colleges ;  (8)  Leading  educators ;  (9) 
200  leading  librarians ;  (10)  The  American  Publish- 
ers' Copyright  League;  (11)  The  American  news- 
paper publishers;  (12)  The  International  Typo- 
graphical Union;  (13)  American  employing  printers; 
(14)  The  Electric  Club  of  New  York;  (15)  The 
Chicago  Copyright  League ;  (16)  The  International 
Copyright  Association,  of  New  England  ;  (17)  Car- 
dinal Gibbons ;  (18)  Dr.  Weir  Mitchell ;  (19)  George 
Ticknor  Curtis;  (20)  Gladstone;  (21)  The  Ameri- 
can magazines  unanimously;  (22)  281  leading  news- 
papers. 

president  Harrison's  recommendation. 

President  Benjamin  Harrison,  in  his  message  to 
Congress,  December  3,  1889,  wrote  as  follows: 

The  subject  of  an  international  copyright  has  been  frequently 
commended  to  the  attention  of  Congress  by  my  predecessors.  The 
enactment  of  such  a  law  would  be  eminently  wise  and  just. 

EX-PRESIDENT    GROVER    CLEVELAND    FAVORS     THE 
BILL. 

New  York,  December  6,  1889. 
My  Dear  Mr.  Johnson  :  I  hope  that  I  need  not  assure  you  how 
much  I  regret  my  inability  to  be  with  you  and  other  friends  and 
advocates  of  international  copyright  in  this  hour.  It  seems  to  me 
very  strange  that  a  movement  having  so  much  to  recommend  it  to 
the  favor  of  just  and  honest  men  should  languish  in  the  hands  of 
our  law-makers.  It  is  not  pleasant  to  have  forced  upon  one  the 
reflection  that  perhaps  the  fact  that  it  is  simply  just  and  fair  is  to  its 
present  disadvantage.  And  yet  I  believe,  and  I  know  you  and  the 
others  engaged  in  the  cause  believe,  that  ultimately  and  with  contin- 
ued effort,  the  friends  of  this  reform  will  see  their  hopes  realized. 


INTERNATIONAL   COPYRIGHT.  107 

Then  it  will  be  a  great  satisfaction  to  know  and  feel  that  success  wa3 
achieved  by  force  of  fairness,  justice,  and  morality. 

Grover  Cleveland. 
Mr.  R.  U.  Johnson,  Secretary. 

PETITION   OF  AUTHORS. 

The  undersigned  American  citizens,  who  earn 
their  living  in  whole  or  in  part  by  their  pen,  and 
who  are  put  at  disadvantage  in  their  own  country 
by  the  publication  of  foreign  books  without  pay- 
ment to  the  author,  so  that  American  books  are 
undersold  in  the  American  market,  to  the  detriment 
of  American  literature,  urge  the  passage  by  Con- 
gress of  an  International  Copyright  Law,  which  will 
protect  the  rights  of  authors,  and  will  enable  Ameri- 
can writers  to  ask  from  foreign  nations  the  justice 
we  shall  then  no  longer  deny  on  our  own  part. 

[Signed  by  144  of  the  leading  American  authors, 
as  follows:] 

Henry  Abbey.  Hjalmar  H.  Boyesen. 

Lyman  Abbott.  R.  R.  Bowker. 

Charles  Kendall  Adams.  Francis  F.  Browne. 

Henry  C.  Adams.  Oliver  B.  Bunce. 

Herbert  B.  Adams.  H.  C.  Bunner. 

Oscar  Fay  Adams.  Frances  Hodgson  Burnett. 

Louisa  May  Alcott.  Edwin  Lassetter  Bynner. 

Thomas  Bailey  Aldrich.  G.  W.  Cable. 

Edward  Atkinson.  Lizzie  W.  Champney. 

Leonard  W.  Bacon.  S.  L.  Clemens  (Mark  Twain). 

Hubert  H.  Bancroft.  Titus  Munson  Coan. 

Charles  Barnard.  Robert  Collyer. 

Amelia  E.  Barr.  Clarence  Cook. 

Henry  Ward  Beecher.  George  Willis  Cooke. 

Edward  Bellamy.  J.  Esten  Cooke. 

William  Henry  Bishop.  A.  Cleveland  Coxe. 


io8 


THE    QUESTION   OF   COPYRIGHT. 


George  William  Curtis. 

Charles  De  Kay. 

Eugene  L.  Didier. 

John  Dimitry. 

Nathan  Haskell  Dole. 

Maurice  Francis  Egan. 

Edward  Eggleston. 

George  Gary  Eggleston. 

Richard  T.  Ely. 

Edgar  Fawcett. 

Charles  Gayarre. 

Richard  Watson  Gilder, 

Arthur  Gilman. 

James  R.Gilmore  (Edmund  Kirke) 

Washington  Gladden. 

Parke  Godwin. 

Robert  Grant. 

F.  V.  Greene. 

Edward  Greey. 

William  Elliot  Griffis. 

Hattie  Tyng  Griswold. 

W.  M.  Griswold. 

Louise  Imogen  Guiney. 

John  Habberton. 

Edward  E.  Hale. 

J.  Hall. 

William  A.  Hammond. 

Marion  Harland. 

Joel  Chandler  Harris. 

Miriam  Coles  Harris. 

Wm.  T.  Harris. 

James  A.  Harrison. 

J.  M.  Hart. 

Bret  Harte. 

Thos.  Wentworth  Higginson. 

Edward  S.  Holden. 

Oliver  Wendell  Holmes. 

James  K.  Hosmer. 

W.  D.  Howells. 

Ernest  Ingersoll. 


Helen  Jackson  (H.  H.). 
Sara  O.  Jewett. 
Rossiter  Johnson. 
Ellen  Olney  Kirk. 
Thos.  W.  Knox. 
Martha  J.  Lamb. 
George  Parsons  Lathrop. 
Henry  Cabot  Lodge. 
Benson  J.  Lossing. 
J.  R.  Lowell. 
Hamilton  W.  Mabie. 
James  McCosh. 
John  Bach  McMaster. 
.Albert  Mathews. 
Brander  Matthews. 
Edwin  D.  Mead. 
Donald  G.  Mitchell. 
T.  T.  Munger. 
Anna  Katharine  Green. 
George  Walton  Green. 
Harry  Harland  (Sidney  Luska). 
John  Hay. 
Henry  F.  Keenan. 
Simon  Newcomb. 
R.  Heber  Newton. 
Charles  Ledyard  Norton. 
Grace  A.  Oliver. 
John  Boyle  O'Reilly. 
Francis  Parkman. 
James  Parton. 
P.  Y.  Pember. 
Thomas  S.  Perry. 
Ben  Perley  Poore. 
David  L.  Proudfit. 
Isaac  L.  Rice. 
Charles  F.  Richardson. 
E.  P.  Roe. 
J.  T.  Rothrock. 
Philip  Schaff. 
James  Schouler. 


INTERNATIONAL   COPYRIGHT.  IO9 

Horace  E.  Scudder.  David  A.  Wells. 

Eugene  Schuyler.  Horace  White. 

Isaac  Sharpless.  William  D.  Whitney. 

Albert  Shaw.  John  G.  Whittier. 

George  William  Sheldon.  Constance  Fenimore  Woolson. 

E.  V.  Smalley.  John  Burroughs. 

Ainsworth  R.  Spofford.  Rose  Elizabeth  Cleveland. 

Edmund  C.  Stedman.  Mary  Mapes  Dodge. 

Frederic  J.  Stimson.  Henry  George. 

Frank  R.  Stockton.  W.  Hamilton  Gibson. 

R.  H.  Stoddard.  Mary  N.  Murfree  (Charles  Egbert 

Maurice  Thompson.  Craddock). 

Moses  Coit  Tyler.  Harriet  Prescott  Spofford. 

Francis  H.  Underwood.  Walt  Whitman. 

William  Hayes  Ward.  Adeline  D.  T.  Whitney. 

Susan  Hayes  Ward.  George  Bancroft. 

Chas.  Dudley  Warner. 

WESTERN   AUTHORS   FAVOR   THE   BILL. 

The  following  resolution  was  adopted  by  the 
Western  Association  of  Writers,  in  convention, 
June,  1886,  and  was  re-adopted  in  1889-90: 

Resolved,  That  this  convention  earnestly  presents  to  the  considera- 
tion and  urges  the  importance,  justice,  and  feasibility  of  Interna- 
tional Copyright  upon  our  members  of  Congress  and  United  States 
Senators  ;  and  that  we  hold  the  establishment  of  just  and  permanent 
relations  with  England  and  other  friendly  nations  upon  the  subject 
of  copyright  to  be  a  necessity  to  the  best  success  of  American  author- 
ship. 

In  addition  to  this  resolution,  the  members  of  the 
association  petitioned  Congress  for  the  passage  of 
the  bill. 

In  an  address,  dated  February  28,  1890,  the  ex- 
ecutive committee  of  the  association  says: 

A  good  international  copyright  law,  so  long  hoped  for  from  Con- 
gress, will  insure  protection  to  foreign  authors  in  our  own  land  and 


IIO  THE   QUESTION   OF   COPYRIGHT. 

to  American  authors  in  foreign  lands.  It  will  do  more.  It  will 
place  the  books  of  American  writers  on  an  equal  footing  financially 
with  those  of  their  foreign  contemporaries,  will  tend  to  increase  the 
sale  of  American  books,  and  will  encourage  the  greatest  mental 
activity  of  American  thinkers.  From  this  may  be  expected  the 
greatest  benefit  to  our  republican  government.  For  American  books 
embodying  American  ideas  will  then  gain,  probably,  at  least  as  wide 
a  hearing  as  foreign  books  clothing  foreign  ideas. 

PETITION   OF    SOUTHERN  AUTHORS. 

To  the  Honorable  the  Af embers  of  the  House  of  Representatives  from 
the  Southern  States  : 

The  undersigned,  writers  connected  with  Southern  literature  or 
journalism,  respectfully  invoke  your  hearty  aid  in  behalf  of  the 
Chace-Breckinridge  International  Copyright  bill,  now  on  the  calen- 
dar of  the  House  of  Representatives.  We  believe  this  bill  to  be 
both  just  in  principle  and  necessary  to  the  normal  development  of 
American  literature,  and  that,  instead  of  increasing  the  price  of 
books,  as  has  been  feared,  it  will  tend  to  the  opposite  effect  by 
reason  of  the  larger  editions  which  publishers,  thus  secured  in  their 
legitimate  market,  will  be  enabled  to  put  forth.  Since  it  cannot  be 
retroactive,  it  will  in  no  way  affect  the  price  of  any  volume  which 
shall  have  been  printed  up  to  the  date  at  which  it  will  go  into  opera- 
tion. In  other  words,  the  present  literature  of  the  world  will  be 
open  to  as  cheap  republication  after  the  passage  of  the  bill  as  before. 
We  particularly  desire  to  call  your  attention  to  the  revival  of  literary 
activity  in  the  South.  No  portion  of  the  country  is  more  interested 
in  the  fullest  security  of  literary  property,  for  in  no  portion  will  the 
development  of  literature  be  more  greatly  aided  by  this  bill.  Its 
passage  will  remove  from  our  country  the  national  disgrace  of  tolerat- 
ing literary  piracy. 

Signed  by  Thomas  Nelson  Page,  Ame'lie  Rives  Chanler,  Joel 
Chandler  Harris,  Frances  Hodgson  Burnett,  Mary  N.  Mur- 
free,  Charles  H.  Jones,  George  W.  Cable,  Rachael  J.  Phil- 
brick,  Col.  Richard  M.  Johnston,  Marion  Harland,  F.  H. 
Richardson,  Will  Wallace  Harney,  Charles  H.  Smith,  William 
H.  Hayne,  Augusta  Evans  Wilson,  Elizabeth  Bisland,  R.  T. 
W.  Duke,  Jr.,  James  A.  Harrison,  M.  G.  McClelland,  A.  C. 
Gordon,   Charles  Washington  Coleman,  Jr.,   Frances  Cour- 


INTERNATIONAL   COPYRIGHT.  I  1 1 

tenay  Baylor,  Constance  Cary  Harrison,  M.  Elliot  Seawell, 
H.  S.  Edwards,  Clifford  Lanier,  Marion  A.  Baker,  Page  M. 
Baker,  Grace  King,  William  Miller  Owen,  Robert  Burns 
Wilson,  James  Lane  Allen,  George  William  Brown,  B.  L. 
Gildersleeve,  and  eighty  other  writers  of  note  in  the  South. 

AMERICAN   COMPOSERS   FAVOR  THE   BILL. 

As  may  be  seen  from  the  following  extracts  from 
many  expressions  published  in  the  Century  Maga- 
zine, American  musicians  strongly  favor  an  interna- 
tional copyright  bill : 

As  to  an  international  copyright  law,  I  should  hail  it  with  joy. 
At  this  stage  of  the  world's  progress  such  a  legal  protection  should 
be  everywhere  recognized  as  an  author's  inalienable  right. 

Dudley  Buck. 

The  absence  of  an  international  copyright  law  is  working  directly 
to  the  grave  injury  of  our  native  composers. 

Julius  Eichberg. 

Justice  and  expediency  alike  demand  an  international  copyright, 
and  every  educated  person  in  the  country  should  ask  for  it. 

Arthur  Foote. 

It  seems  to  me  that  there  is  no  honorable  defence  for  our  present 
thievish  attitude  on  the  subject  of  international  copyright. 

B.  J.  Lang. 

Let  us  have  an  international  copyright  law  by  all  means,  and  the 

sooner  the  better. 

Louis  Maas. 

It  seems  to  me  that  the  arguments  in  favor  of  international  copy- 
right, as  regards  works  of  literature,  apply  with  equal  force  to  musi- 
cal compositions. 

William  Mason. 

The  present  state  of  the  law  is  an  inducement  to  swindling,  and 
is  degrading  to  us  as  a  nation.     An  international  copyright  law  that 


112  THE   QUESTION   OF   COPYRIGHT. 

would  compel  American  publishers  to  pay  foreign  composers  for 
their  works  might  also  prove  an  encouragement  to  home  talent  by 
giving  our  own  composers  an  equal  chance  with  others. 

Theodore  Thomas. 

I  am  most  decidedly  in  favor  of  an  international  copyright  law, 

by  which  musical  composers  and  authors  in  other  arts  and  sciences 

will  be  protected  against  the  outrageous  doings  of  many  publishers 

in  America  and  in  Europe. 

Carl  Zerrahn. 

There  must  be  an  international  copyright,  and  that  without  delay, 

or  American  music  will  sink  into  oblivion. 

Eugene  Thayer. 

THE  VOICE   OF  THE   COLLEGES. 

The  following  colleges,  through  their  representa- 
tive officers,  petitioned  Congress  in  favor  of  the 
Chace-Breckinridge  bill: 

Adelbert,  Cleveland,  Ohio. 

A.  &  M.  College  of  Texas,  College  Station,  Texas. 

Amity  College,  College  Springs,  Iowa. 

Beloit,  Beloit,  Wis. 

Bethel,  Russellville,  Ky. 

Bowdoin,  Brunswick,  Me. 

Buchtel  College,  Akron,  Ohio. 

Carleton  College,  Northfield,  Minn. 

Central  Tennessee  College,  Nashville,  Tenn. 

Central  Wesleyan  College,  Warrington,  Me. 

Christian  University,  Canton,  Wis. 

Dartmouth,  Hanover,  N.  H. 

Davidson,  Davidson,  N.  C. 

Doane  College,  Crete,  Nebr. 

Duray  College,  Springfield,  Miss. 

Franklin  &  Marshall  College,  Lancaster,  Pa. 

Franklin  College,  Franklin,  Ind. 

Frederick  College,  Frederick,  Md. 

Haverford,  Haverford,  Pa. 

Heidelberg,  Tiffin,  Ohio. 


INTERNATIONAL   COPYRIGHT.  H3 

Hobart  College,  Geneva,  N.  Y. 

Maryland  Agricultural  College,  College  Station,  Md. 

Indiana  University,  Bloomington,  Ind. 

Johns  Hopkins,  Baltimore,  Md. 

Kentucky  State  University,  Lawrence,  Ky. 

King  College,  Bristol,  Tenn. 

Lawrence  University,  Appleton,  Wis. 

Lebanon  Valley  College,  Lebanon,  Pa. 

Milton  College,  Wisconsin. 

Mississippi  College,  Clinton,  Miss. 

Muskingum  College,  New  Concord,  Ohio. 

Northwestern  University,  Naperville,  111. 

Northwestern  University,  Scranton,  111. 

Ohio  University,  Athens,  Ohio. 

Ohio  State  University,  Columbus,  Ohio. 

Otterbein  University,  Westerville,  Ohio. 

Princeton  College,  Princeton,  N.  J. 

Racine  College,  Racine,  Wis. 

Rensselaer  Polytechnic  Institute,  Troy,  N.  Y. 

Richmond  College,  Richmond,  Va. 

Ripon,  Ripon,  Wis. 

Rochester  University,  Rochester,  N.  Y. 

Rutgers  College,  New  Brunswick,  N.  J. 

South  Carolina,  Columbia,  S.  C. 

State  Normal  School,  Emporia,  Kan. 

State  University,  Iowa  City,  Iowa. 

Trinity  College,  Trinity  College,  North  Carolina. 

Tulane  University,  New  Orleans,  La. 

University  of  California,  Berkeley,  Cal. 

University  of  Dakota,  Grand  Forks,  Dak. 

University  of  Denver,  Denver,  Col. 

University  of  Georgia,  Athens,  Ga. 

University  of  Mississippi,  Oxford,  Miss. 

University  of  Missouri,  Columbia,  Mo. 

Upper  Iowa  University,  Fayette,  Iowa. 

Vanderbilt  University,  Nashville,  Tenn. 

Vassar,  Poughkeepsie,  N.  Y. 

Wells  College,  Aurora,  N.  Y. 

Wesleyan  University,  Middletown,  Conn. 

Western  University  of  Pennsylvania,  Allegheny,  Pa. 


114  THE   QUESTION   OF   COPYRIGHT. 

The  faculties  of  many  other  colleges  are  known  to 
favor  the  bill. 

SUPPORT   FROM    LEADING   EDUCATORS. 

At  the  meeting  of  the  superintendents  of  the 
National  Educational  Association,  held  in  New 
York  city  February  19,  1890,  the  following  resolu- 
tion, on  motion  of  William  E.  Sheldon,  chairman 
of  the  committee  on  copyright,  was  unanimously 
adopted : 

Resolved,  That  the  members  of  the  department  of  superintendence 
of  the  National  Educational  Association  hereby  record  our  sympathy 
with  American  authors  in  the  effort  they  are  now  making  to  obtain 
from  Congress  an  international  copyright  law  ;  and  we  cannot  too 
strongly  express  our  sense  of  the  necessity  of  such  a  measure,  both 
as  an  obligation  of  justice  and  as  a  stimulus  to  American  literature 
and  to  the  spread  of  American  ideas  abroad. 

In  addition  to  this  general  resolution  the  following 
petition  was  signed : 

The  Honorable  the  Senators  and  Representatives  of  the  Congress  of 
the  United  States  : 
The  undersigned,  officers  and  members  of  the  National  Educa- 
tional Association,  respectfully  petition  you  to  support  the  inter- 
national copyright  bill  now  pending  in  both  Houses  of  Congress, 
believing  that  the  proposed  law  would  stimulate  American  literature  ; 
would  promote  the  sciences  and  useful  arts  ;  would  raise  the  standard 
of  reading  and  give  it  a  better  and  more  national  character,  and 
would  be  in  the  interest  of  the  whole  people. 

W.  T.  Harris,  Commissioner  of  Education,  Washington,  D.  C; 
John  Eaton,  ex-Commissioner  of  Education  of  the  United 
States ;  L.  W.  Day,  Superintendent  of  Instruction,  Cleve- 
land, O.  ;  W.  B.  Powell,  Superintendent  of  Schools,  Wash- 
ington, D.  C.  ;  James  MacAlister,  Superintendent  of  Public 
Schools,  Philadelphia  ;  Wm.  M.  Griffin,  Cook  County  Normal 


INTERNATIONAL   COPYRIGHT.  1 1  5 

School,  Chicago  ;  L.  H.  Jones,  Superintendent  of  Schools, 
Indianapolis,  Ind.  ;  Richard  G.  Boone,  Professor  of  Peda- 
gogics, Indiana  University,  Bloomington,  Ind. ;  A.  S.  Draper, 
Superintendent  of  Public  Instruction,  State  of  New  York  ; 
Edwin  C.  Hewett,  President  State  Normal  University, 
Normal,  111.  ;  E.  E.  White,  ex-President  Purdue  Univer- 
sity ;  Geo.  Howland,  Superintendent  of  Schools,  Chicago, 
111.  ;  J.  M.  Greenwood,  Superintendent  of  Schools,  Kansas 
City,  Mo.  ;  Aaron  Gove,  Superintendent  of  Schools,  Denver, 
Col.  ;  W.  H.  Bartholomew,  State  Board  of  Education  of 
Kentucky  ;  J.  A.  B.  Lovett,  editor  Teacher  at  Work,  Hunts- 
ville,  Ala.  ;  Edwin  P.  Seaver,  Superintendent  of  Public 
Schools,  Boston,  Mass.  ;  T.  J.  Morgan,  Commissioner  Indian 
Affairs,  Washington,  D.  C.  ;  Chas.  R.  Skinner,  Deputy 
Superintendent  of  Public  Instruction,  State  of  New  York  ; 
Henry  A.  Wise,  Superintendent  of  Instruction,  Balti- 
more, Md.  ;  Alex.  Forbes,  Chicago,  111.  ;  J.  A.  Shawan, 
Superintendent  of  Schools,  Columbus,  O.  ;  George  P. 
Brown,  editor  Public  School  Journal,  Bloomington,  111.  ; 
John  Hancock,  State  Commissioner  of  Common  Schools, 
Ohio ;  M.  A.  Newell,  State  Superintendent  of  Public  In- 
struction, Maryland  ;  John  MacDonald,  Western  School 
Journal,  Topeka,  Kan.  ;  John  M.  Bloss,  Superintendent 
of  Schools,  Topeka,  Kan.  ;  George  B.  Lane,  State  Super- 
intendent of  Public  Instruction,  Nebraska,  and  about  sixty 
others. 

In  addition  to  the  above  lists,  petitions  in  favor 
of  the  bill  from  467  superintendents  and  teachers  in 
Indiana,  Missouri,  Idaho,  Wisconsin,  Illinois,  Iowa, 
Kansas,  Nebraska,  and  Minnesota  have  been  re- 
ceived and  forwarded  to  Congress : 

PETITION   FROM    LIBRARIANS. 

The  undersigned,  librarians  in  public,  college,  and  circulating 
libraries,  etc.,  respectfully  request  the  passage  of  the  pending  inter- 
national copyright  bill,  believing,  from  our  practical  knowledge  of 
the  reading  public,  that  the  proposed  law  would  stimulate  American 


Il6  THE   QUESTION   OF  COPYRIGHT. 

literature,  would  promote  the  sciences  and  the  useful  arts,  would 
raise  the  standard  of  reading  and  give  it  a  better  and  a  more  national 
tone,  and  would  be  in  the  interest  of  the  whole  people. 

Signed  by  Mr.  A.  R.  Spofford  and  two  hundred  of  the  leading 
librarians  of  the  country,  representing  thirty  States — the  custodians 
of  the  nation's  literary  treasures,  and  to  a  considerable  extent  the 
guides  of  the  people's  reading.  Among  these  are  librarians  of 
public  and  circulating  libraries  of  the  cities  of  New  York,  Phila- 
delphia, Brooklyn,  Chicago,  St.  Louis,  Boston,  Indianapolis,  Co- 
lumbus, Detroit,  San  Francisco,  Buffalo,  Albany,  St.  Paul,  Providence, 
Grand  Rapids,  Kalamazoo,  Rockford,  111.  ;  Springfield,  Ohio ; 
Macon,  Ga.,  and  many  other  cities. 

RESOLUTIONS      OF      THE     AMERICAN      PUBLISHERS' 
COPYRIGHT  LEAGUE,  ADOPTED  JANUARY  21,  1 888. 

Resolved,  That  the  Chace  copyright  bill,  with  the  amendments 
now  recommended  by  your  executive  committee,  appears  fairly  to 
meet  the  several  requirements  of  American  writers,  readers,  manu- 
facturers, and  sellers  of  books,  domestic  and  foreign,  and  has  the 
approval  of  this  league  ;  and  our  executive  committee  is  hereby 
instructed  to  take  such  action  as  it  may  find  requisite  to  secure  the 
passage  of  the  bill  with  these  amendments. 

Resolved,  That,  recognizing  from  the  history  of  previous  attempts, 
and  from  the  statement  of  the  present  obstacles,  the  difficulty  of 
securing  any  legislation  on  international  copyright  (an  undertaking 
in  which  such  a  variety  of  interests  are  involved,  and  in  connection 
with  which  such  diverse  views  are  being  pressed  upon  Congress),  our 
executive  committee  is  hereby  authorized,  in  the  event  of  its  proving 
impracticable  to  secure  the  adoption  of  the  bill  in  the  precise  form 
in  which  it  is  now  recommended  to  them,  to  support  on  behalf  of 
the  league  this  bill,  or  a  bill  on  the  general  lines  of  this  bill,  with 
such  modifications  as  may  prove  requisite  to  secure  the  necessary 
Congressional  support :  Provided,  always,  That  no  modifications  be 
accepted  that  fail  to  provide  for  the  printing  in  this  country  of 
foreign  books  securing  American  copyright. 

The  league,  which  cordially  indorses  the  pending 
bill,  embraces  the  following  publishing  houses: 


INTERNATIONAL   COPYRIGHT.  117 

Amer.  Publishing  Co.  (Frank  E.  Bliss,  president),  Hartford,  Conn. 

Armstrong,  A.  C,  &  Son,  714  Broadway,  New  York. 

Alden,  John  B.,  393  Pearl  street,  New  York. 

Appleton,  D.,  &  Co.,  1  and  3  Bond  street,  New  York. 

Barnes,  A.  S.,  &  Co.,  Ill  William  street,  New  York. 

Baker  &  Taylor  Co.,  The,  9  Bond  street,  New  York. 

Bovvker,  R.  R.,  330  Pearl  street,  New  York. 

Bugbee,  David  &  Co.,  Bangor,  Me. 

Carter  &  Bros.,  Robert,  530  Broadway,  New  York. 

Cushings  &  Bailey,  Baltimore,  Md. 

Century  Company,  33  East  17th  street,  New  York. 

Clarke  &  Co.,  Robert,  Cincinnati,  Ohio. 

Crowell,  T.  Y.,  &  Co.,  13  Astor  Place,  New  York. 

Clark  &  Maynard,  771  Broadway,  New  York. 

Dutton  &  Co.,  E.  P.,  21  West  23d  street,  New  York. 

Ditson,  Oliver  &  Co.,  Boston,  Mass. 

Dodd,  Mead  &  Co.,  755  Broadway,  New  York. 

Dillingham,  G.  W.,  31  West  23d  street,  New  York. 

Estes  &  Lauriat,  Boston,  Mass. 

Fords,  Howard  &  Hulbert,  30  Lafayette  Place,  New  York. 

Flexner  &  Staadeker,  Louisville,  Ky. 

Gebbie  &  Co.,  Philadelphia,  Pa. 

Ginn  &  Co.,  743  Broadway,  New  York. 

Harper  &  Bros.,  Franklin  Square,  New  York. 

Hubbard  Bros.,  Philadelphia,  Pa. 

Holbrook,  M.  L.,  25  Bond  street,  New  York. 

Holt,  Henry,  &  Co.,  27  West  23d  street,  New  York. 

Houghton,  Mifflin  &  Co.,  Boston,  Mass. 

International  Copyright  Association,  Boston. 

Ivison,  Blakeman  &  Co.,  753  Broadway,  New  York. 

Kirchner  &  Co.,  Geo.,  17  Union  Square,  New  York. 

Lovell  Co.,  John  W.,  14  Vesey  street,  New  York. 

Lothrop  &  Co.,  D.,  Boston,  Mass. 

Lippincott  Co.,  The  J.  B.,  Philadelphia,  Pa. 

Little,  Brown  &  Co.,  Boston,  Mass. 

Lee  &  Shepard,  Boston,  Mass. 

Lockwood,  Geo.  R.,  &  Son,  812  Broadway,  New  York. 

Little,  J.  J.,  &  Co.,  10  Astor  Place,  New  York. 

Munro,  Geo.,  17  Vandewater  street,  New  York. 

McClurg  &  Co.,  A.  C,  Chicago,  111. 


Il8  THE   QUESTION   OF   COPYRIGHT. 

Nims  &  Knight,  Troy,  N.  Y. 

Pomeroy,  Mark  M.,  234  Broadway,  New  York. 

Putnam's  Sons,  G.  P.,  27  and  29  West  23d  street,  New  York. 

Phillips  &  Hunt,  Fifth  ave.  and  20th  street,  New  York. 

Pott  &  Co.,  Jas.,  14  Astor  Place,  New  York. 

Putnam,  Davis  &  Co.,  Worcester,  Mass. 

Roberts  Bros.,  Boston,  Mass. 

Randolph,  A.  D.  F.,  &  Co.,  38  West  23d  street,  New  York. 

Rand,  McNally  &  Co.,  Chicago,  111. 

Stokes  &  Bros.,  F.  A.,  182  Fifth  ave.,  New  York. 

Scribner's  Sons,  Chas. ,  743  Broadway,  New  York. 

Street  &  Smith,  31  Rose  street,  New  York. 

Sheldon  &  Co.,  724  Broadway,  New  York. 

St.  Paul  Book  &  Stationery  Co.,  St.  Paul,  Minn. 

Ticknor&Co.,  Boston,  Mass. 

Tainlor  Bros.  &  Co.,  18  Astor  Place,  New  York. 

Trow  Printing  &  Bookbinding  Co. ,  New  York. 

Van  Antwerp,  Bragg  &  Co.,  Cincinnati,  Ohio. 

Van  Nostrand,  D.,  estate  of,  23  Murray  street,  New  York. 

Webster,  Chas.  L.,  &  Co.,  3  East  14th  street.  New  York. 

Whittaker,  Thos.,  2  Bible  House,  New  York. 

Wood  &  Co.,  Wm.,  56  Lafayette  Place,  New  York. 

Wiley,  John,  &  Sons,  15  Astor  Place,  New  York. 

White  &  Allen,  94  Wall  street,  New  York. 

Young,  E.  &  J.  B.,  &  Co.,  6  Cooper  Union,  New  York. 

AMERICAN   NEWSPAPER   PUBLISHERS. 

The  American  Newspaper  Publishers'  Associa- 
tion, in  convention  February  13,  1890,  adopted  the 
following  resolution : 

Resolved,  That  the  American  Newspaper  Publishers'  Association  is 
in  hearty  sympathy  with  the  efforts  now  being  made  by  American 
authors  to  obtain  from  Congress  a  fuller  security  for  literary  property, 
and  we  believe  the  proposed  International  Copyright  Bill  to  be  in 
the  interest  of  the  national  honor  and  welfare. 

THE   PRINTERS'    UNIONS. 

At  the  Denver  session  of  the  International  Typo- 


INTERNATIONAL  COPYRIGHT.  119 

graphical  Union,  in   June,  1889,  the  following  pre- 
ambles and  resolution  were  adopted : 

Whereas  the  measure  known  as  the  "  Chace  International  Copy- 
right Bill "  failed  to  become  a  law  through  lack  of  consideration 
in  the  House  of  Representatives  of  the  Fiftieth  Congress  ;  and 

Whereas  said  bill  will  be  reintroduced  in  both  houses  of  the  Fifty- 
first  Congress  and  put  upon  its  passage  at  an  early  date  ;  and 

Whereas  said  bill  contains  a  clause  which  guarantees  absolutely 
that  all  books  copyrighted  in  this  country  shall  be  printed  from  type 
set  within  the  limits  of  the  United  States  :  Therefore, 

Resolved,  That  the  International  Typographical  Union  heartily 
indorses  the  "Chace  International  Copyright  Bill,"  and  urges  it  as  a 
duty  upon  subordinate  unions  and  union  printers  everywhere  to  use 
all  honorable  means  to  further  the  passage  of  said  bill. 

In  accordance  with  this  resolution,  over  two 
hundred  local  unions,  representing  all  sections  of 
the  country  and  comprising  40,000  members,  have 
strongly  indorsed  the  pending  bill,  and  have  urged 
its  passage  upon  members  of  Congress,  through  a 
committee  consisting  of  John  L.  Kennedy,  De  Witt 
C.  Chadwick,  and  H.  S.  Sutton. 

THE  EMPLOYING  PRINTERS  OF  THE  UNITED  STATES. 

At  the  third  annual  meeting  of  the  United  Ty- 
pothetae  of  America,  held  at  St.  Louis,  Mo.,  October 
8,  9,  and  10,  1889,  the  following  resolution  was  pre- 
sented to  the  convention  from  the  committee  on 
copyright,  consisting  of  Messrs.  Theodore  L.  De 
Vinne,  W.  J.  Gilbert,  and  P.  F.  Pettibone,  and  was 
adopted : 

Resolved,  That  the  association  appoint  a  delegate  to  the  next  meet- 
ing of  the  American  Copyright  League,  to  be  held  in  New  York 
city,  and  that  we  here  record  our  approval  of  the  general  principle 


120  THE   QUESTION   OF   COPYRIGHT. 

of  international  copyright,  and  especially  of  the  provision  that  all 
books  copyrighted  shall  be  printed  in  the  United  States. 

THE   STRONGEST    PATENT   CLUB   IN   THE   COUNTRY. 

New  York,  February  20,  1890. 
Resolved,  That  the  Electric  Club  of  New  York  is  in  hearty  sym- 
pathy with  the  present  efforts  of  American  authors,  publishers,  em- 
ploying printers,  and  workmen  in  the  printing  trades  to  obtain  from 
Congress  a  just  recognition  of  the  rights  of  intellectual  property,  and 
it  hails  with  satisfaction  the  prospect  of  an  early  passage  of  the 
International  Copyright  Bill. 

ACTION   OF   THE   CHICAGO    COPYRIGHT   LEAGUE. 

Chicago,  February  25,  1890. 
Resolved,  That  this  meeting  unanimously  indorses  the  efforts  of 
Congressman  George  E.  Adams  of  Chicago  toward  securing  the 
enactment  of  the  Chace-Breckinridge  international  copyright  bill  in 
the  United  States  House  of  Representatives,  and  urges  upon  Con- 
gress the  necessity  for  the  immediate  passage  of  said  bill. 

Among  the  supporters  of  this  resolution  were  A. 
C.  McClurg,  Franklin  McVeagh,  Joseph  Kirkland, 
David  Swing,  C.  L.  Hutchinson,  Hobart  C.  Taylor, 
Franklin  H.  Head,  William  F.  Poole,  Marshall 
Field,  Edward  G.  Mason,  Slason  Thompson,  and 
many  others. 

THE   INTERNATIONAL   COPYRIGHT  ASSOCIATION    OF 
NEW   ENGLAND. 

The  bill  was  indorsed  as  follows  at  the  last  annual 
meeting  of  this  association,  composed  of  authors, 
publishers,  paper-makers,  printers,  book-binders,  edu- 
cators, jurists,  professional  men,  merchants,  bank- 
ers, and  others,  including  Charles  Francis  Adams, 


INTERNATIONAL   COPYRIGHT.  121 

Nathan  Appleton,  Edward  Atkinson,  George 
Bancroft,  Edwin  Booth,  Samuel  Bowles,  Jonathan 
Chace,  James  Freeman  Clarke,  Richard  H.  Dana, 
Bancroft  C.  Davis,  Samuel  Adams  Drake,  Charles 
W.  Eliot,  William  Endicott,  Jr.,  O.  B.  Frothing- 
ham,  Joseph  R.  Hawley,  George  F.  Hoar,  Oliver 
Wendell  Holmes,  John  D.  Long,  Henry  Cabot 
Lodge,  Frederick  Law  Olmsted,  Henry  L.  Pierce, 
Noah  Porter,  Frederick  O.  Prince,  Alexander  H. 
Rice,  John  C.  Ropes,  Francis  A.  Walker,  and  hun- 
dreds of  others. 

Resolved,  That  this  association  approves  the  bill  granting  copy- 
right to  foreign  authors  and  artists  now  before  Congress,  and  warmly 
urges  its  prompt  passage,  in  the  interest  of  the  principles  of  equity 
and  justice  and  to  the  end  that  our  own  authors  and  artists  may  re- 
ceive a  proper  recognition  and  reward  for  their  works. 

The  Washington,  D.  C,  association  and  leading 
citizens  of  St.  Louis  have  indorsed  the  bill  in  similar 
terms. 

CARDINAL   GIBBONS   ON   COPYRIGHT. 

Cardinal  Gibbons  has  written  the  following  let- 
ter: 

My  Dear  Sir  :  I  desire  to  say  that  I  am  in  entire  sympathy  with 
those  distinguished  authors  in  the  earnest  efforts  they  are  making  to 
secure  from  Congress  an  international  copyright  law. 

Intellectual  labor  is  the  highest  and  noblest  occupation  of  man, 
and  there  is  no  work  to  the  fruit  of  which  a  man  has  a  higher  claim 
than  to  the  fruit  of  mental  labor.  Many  authors  have  reason  to 
complain  in  almost  the  words  of  the  Gospel  :  "  We  have  labored  and 
others  have  entered  into  our  labors." 

It  seems  to  me  eminently  just  that  adequate  protection  should  be 


122  THE   QUESTION   OF   COPYRIGHT. 

afforded  to  authors,  so  as  to  secure  them  against  what  is  conceived  to 
be  a  manifest  violation  of  their  rights. 

I  am,  my  dear  sir,  yours  faithfully, 

James,  Card.  Gibbons. 
February  15,  1890. 

Robert  U.  Johnson,  Esq., 

Secretary  American  Copyright  League. 

AN   AUTHORITATIVE   VOICE   FROM   THE   MEDICAL 
PROFESSION. 

January  20,    1S90. 

Dear  Sir  :  Perhaps  few  persons,  certainly  none  in  the  medical 
profession  of  this  country,  could  show  a  record  which  would  better 
prove  the  need  of  an  international  copyright  than  could  I.  I  once 
pointed  out  to  a  member  of  Congress  in  my  library,  a  copy  of  one  of 
my  books  translated  into  French,  two  translations  of  the  same  in  Ger- 
man, one  in  Russian,  and  another  work  of  mine  translated  into 
French.  For  none  of  these  had  I  ever  received  a  cent.  It  is  true 
that  two  of  these  translations  were  authorized  by  me  when  my  con- 
sent was  asked,  but,  of  course,  it  would  not  have  been  given  without 
some  financial  return  to  me  if  the  law  had  been  otherwise  than  it  is, 
since  any  one  could  at  will  take  the  book  and  translate  it  without  the 
slightest  references  to  the  wishes  of  the  author.  A  great  many  Ameri- 
can medical  books  have  been  translated  into  the  European  languages 
with  or  without  the  assent  of  the  authors,  but  I  have  never  heard 
that  for  any  of  these  did  our  authors  ever  receive  a  penny.  My  own 
case  is,  I  fancy,  the  strongest,  and  I  have  no  objection  to  your 
printing  this  statement  if  it  will  further  the  purposes  of  the  League. 

Yours,  very  truly, 

Weir  Mitchell. 

Secretary  of  Copyright  League, 

New  York  City. 

THE   OPINION   OF  A   DISTINGUISHED    CONSTITU- 
TIONAL  LAWYER. 

Hon.  George  Ticknor  Curtis,  one  of  the  earliest 
and  ablest  advocates  of  an  international  copyright 


INTERNATIONAL   COPYRIGHT.  1 23 

law,  has  written  the  following  letter  in  support  of 

the  pending  bill  : 

114  East  Thirtieth  Street, 

New  York,  April  18,  1890. 

Dear  Sir  :  .  .  .  It  seems  to  me,  as  an  American  author  and 
a  citizen  of  the  United  States,  in  common  with  many  other  Ameri- 
can authors  and  citizens,  that  our  wishes  ought  to  receive  careful 
attention  at  the  hands  of  Congress.  It  is  no  longer  possible  to  deny 
the  justice  and  expediency  of  an  international  copyright  law,  such 
as  is  proposed  in  the  pending  bill.  While  it  will  benefit  foreign,  and 
especially  English,  authors,  to  American  authors  it  is  certain  to 
operate  as  a  measure  that  will  secure  to  them  fruits  of  their  labors 
which  they  are  entitled  to  enjoy.  I  have  myself  failed  to  receive  rev- 
enue from  publications  that  ought  to  have  yielded  me  revenue  in 
England  as  well  as  in  this  country  ;  publications  of  which  English 
publishers  have  availed  themselves  without  making  me  the  slightest 
remuneration.  This  wrong  can  be  corrected  by  Congress  for  Ameri- 
can authors  in  regard  to  future  publication  without  the  slightest  dis- 
advantage to  readers,  publishers,  bookmakers,  or  printers,  by  passing 
the  pending  bill. 

I  may  not  have  personal  influence  with  those  who  are  to  decide 
this  great  measure  of  right  and  justice,  but  I  feel  that  I  have  reason 
to  do  everything  I  can  in  its  favor. 

Very  truly,  your  obedient  servant, 

George  Ticknor  Curtis. 

Robert  U.  Johnson,  Esq., 

Secretary  American  Copyright  League. 

MR.    GLADSTONE'S   ATTITUDE. 

Mr.  Gladstone  having  been  quoted  by  the  op- 
ponents of  the  international  copyright  bill,  not  only 
as  a  partisan  of  the  royalty  or  stamp  copyright 
scheme,  which  the  friends  of  the  bill  strongly  oppose, 
but  also  as  an  opponent  of  the  bill  itself,  the  secre- 
tary of  the  American  Copyright  League  recently 
addressed  him  a  letter  of  inquiry  on  the  subject,  to 
which  the  subjoined  reply  has  been  received  : 


124  THE   QUESTION   OF   COPYRIGHT. 

House  of  Commons  Library,  March  25,  1890. 
My  Dear  Sir  :  I  set  so  high  a  value  upon  the  recognition  by  the 
United  States  of  the  principle  of  international  copyright,  a  principle 
which  has  been  now  almost  universally  adopted  in  Europe,  that  al- 
though I  regret  some  of  the  provisions  of  the  bill  now  before  Con- 
gress, I  cannot  refuse  to  express  my  sympathy  with  the  efforts  which 
American  authors  have  so  perseveringly  made  to  procure  legal  pro- 
tection for  the  rights  of  foreign  authors,  and  my  hope  that  these 
efforts  maybe  speedily  crowned  with  success.  Imperfect  as  the  pres- 
ent bill  is,  it  will,  if  I  rightly  read  its  provisions,  place  both  Ameri- 
can and  non-American  authors  in  a  more  equitable  position  than 
they  have  hitherto  occupied. 

It  is  quite  erroneous  to  suppose  that  I  have  formed  any  opinion  in 
favor  of  the  royalty  scheme  as  against  this  bill. 

I  remain,  my  dear  sir,  faithfully  yours, 

W.  E.  Gladstone. 
R.   U.  Johnson,  Esq., 

Secretary  American  Copyright  League. 

THE   MAGAZINES   UNANIMOUS. 

In  response  to  a  circular  inquiry  addressed  to 
forty  leading  monthly  periodicals,  the  following 
authorized  the  use  of  their  names  as  strongly  in 
favor  of  the  pending  bill.  Not  one  unfavorable 
reply  was  received : 

Atlantic  Monthly.  Forum. 

Andover  Review.  Magazine  of  American  History. 

Art  Amateur.  Godey's  Lady's  Book. 
American  Journal  of  Education.     Home-Maker. 

Arena.  Hall's  Journal  of  Health. 

Book-Buyer.  Hamilton  Review. 

Belford's  Magazine.  Harper's  Magazine. 

Book  Chat.  Lippincott's  Magazine. 

Century  Magazine.  Lend  a  Hand. 

Cosmopolitan.  Lookout  and  New  England  Mag- 
Current  Literature.  azine. 

"  Dixie."  Northwest  Magazine. 

Dial.  New  England  Magazine. 


INTERNATIONAL   COPYRIGHT. 


125 


New  Englander  and  Yale  Review.   Popular  Science  Monthly. 


No  Name  Magazine. 

North  American  Review. 

Our  Country  Home. 

Outing. 

Political  Science  Quarterly. 

Frank  Leslie's  Weekly. 


St.  Louis  Magazine. 
Scribner's  Magazine. 
St.  Nicholas. 
Statesman. 
Writer. 


THE  VOICE   OF   THE   PRESS. 

Following  is  a  partial  list  of  the  American  news- 
papers and  weekly  periodicals  which  have  given 
the  proposed  copyright  legislation  cordial  support. 
Very  many  others  are  also  known  to  favor  it : 


Boston  Beacon. 

Boston  Congregationalism 

Boston  Advertiser. 

Boston  Journal. 

Boston  Journal  of  Education. 

Boston  Herald. 

Boston  National  Journalist. 

Boston  Pilot. 

Boston  Post. 

Boston  Transcript. 

Boston  Traveller. 

Zion's  Herald  (Boston). 

New  Haven  (Conn.)  News. 

American  Bookseller  (New  York), 

American  Economist  (New  York). 

American  Hebrew  (New  York). 

Bradstreet's  (New  York). 

Christian  Union  (New  York). 

Critic  (New  York). 

Current  Literature  (New  York). 

Electrical  World  (New  York). 

Dramatic  Mirror  (New  York). 

Epoch  (New  York). 

Evangelist  (New  York). 


Examiner  (New  York). 

Financier  (New  York). 

Harper's  Weekly  (New  York). 

Home  Journal  (New  York). 

Independent  (New  York). 

Life  (New  York). 

Nation  (New  York). 

Observer  (New  York). 

Publishers'  Weekly  (New  York). 

Puck  (New  York). 

Judge  (New  York). 

Voice  (New  York). 

Witness  (New  York). 

New  York  Commercial  Advertiser. 

New  York    Courrier     des     Etats- 

Unis. 
New  York  Evening  Post. 
New  York  Evening  Telegram. 
New  York  Herald. 
New  York  Morning  Journal. 
New  York  Mail  and  Express. 
New  York  Press. 
New  York  -Star. 
New  York  Times. 


126 


THE   QUESTION   OF   COPYRIGHT. 


New  York  Tribune. 

New  York  World. 

Scranton  (Pa.)  Times. 

Pottsville(Pa.)  Evening  Chronicle. 

Bridgeport  (Conn.)  Standard. 

Jersey  City  (N.  J.)  Evening  Jour- 
nal. 

Newburyport  (Mass.)  Herald. 

Springfield  (Mass.)  Republican. 

Peoria  (111.)  Journal. 

Newark  (N.  J.)  Morning  Press. 

Dayton  (Ohio)  Herald. 

Chattanooga  (Tenn.)  Republican. 

Columbus  (Ohio)  Sunday  Morning 
News. 

Springfield  (Mo.)  Dailyand  Week- 
ly Herald. 

New  York  Financial  Times. 

Watkins  (N.  Y.)  Herald. 

Chicago  National  Journalist. 

Brookville  (Ind.)  American. 

Leoti  (Kansas)  Western  Farmer. 

Buffalo  Courier. 

Albany  (N.  Y.)  Times. 

Cincinnati  (Ohio)  Post. 

Springfield  (111.)  Journal. 

Milwaukee  (Wis.)  Evening  Wis- 
consin. 

Burlington  (Iowa)  Hawk-Eye. 

Lakewood    (N.    J.)    Times    and 
Journal. 

Memphis  (Tenn.)  Commercial. 

Washington  (D.  C)  National  View. 

Boston  Courier. 

Portland  (Me.)  Transcript. 

Boston  Commonwealth. 

Buffalo  Mercantile  Review. 
Dayton  (Ohio)  Journal. 
New  York  Electrical  Review. 
Cambridge  (Mass.)  Press. 


Greenfield     (Mass.)    Gazette    and 
Courier. 

Buffalo  Milling  World. 

Buffalo  Lumber  World. 

Buffalo  Iron  Industry  Gazette. 

New  York  Family  Story  Paper. 

New  York  Golden  Hours. 

New  Hampshire  (Keene,   N.    H.) 
Sentinel. 

Binghamton  (N.  Y.)  Republican. 

Jamestown  (N.  Y.)  Journal. 

Greensburg  (Pa.)  Press. 

Des    Moines    (Iowa)    Iowa    State 
Register. 

Cambridge  (Mass.)  Tribune. 

Cambridge  (Mass.)  Chronicle. 

Columbus  (Ga.)  Inquirer. 

Boston  Youths'  Companion. 

Rochester  (N.  Y.)  Union  and  Ad- 
vertiser. 

Newark  (N.  J.)  Sunday  Call. 

Memphis  (Tenn.)  Sunday  Times. 

Brooklyn  Standard  Union. 

Kingston  (N.  Y.)  Freeman. 

Little  Falls  (N.  Y.)  Times. 

Rochester  Post-Express. 

American  Rural  Home(Rochester.) 

Erie  (Pa.)  Herald. 

Erie  (Pa.)  Morning  Dispatch. 

Friends'  Intelligencer  and  Journal 
(Philadelphia). 

Golden  Days  (Philadelphia). 

National  Baptist  (Philadelphia). 

Telephone  (Philadelphia). 

Philadelphia  Inquirer. 
Philadelphia  North  American. 

Philadelphia  Press. 
Philadelphia  Public  Ledger. 
Watertown  (N.  Y.)  Times. 

Williamsport  (Pa.)  Sun. 


INTERNATIONAL  COPYRIGHT. 


127 


Pittsburgh  (Pa.)  Commercial  Ga- 
zette. 

New  Bedford  (Mass.)  Daily  Mer- 
cury. 

New  London  (Conn.)  Morning 
Telegraph. 

Newark  (N.  J  )  Daily  Advertiser. 

Lowell  (Mass.)  Daily  Courier. 

Baltimore  (Md.)  Sun. 

Paterson  (N.  J.)  Press. 

Wilmington  (Del.)  Every  Evening. 

Haverhill  (Mass.)  Gazette. 

Bridgeport  (Conn.)  Farmer. 

Harrisburg  (Pa.)  Morning  Call. 

Pittsfield  (Mass.)  Evening  Journal. 

Waterbury  (Conn.)  American. 

Utica  (N.  Y.)  Daily  Press. 

Philadelphia  Record. 

Omaha  (Nebr.)  Republican. 

Buffalo  Tidings. 

Baltimore  Telegram. 

Winona  (Minn)  Daily  Republican. 

Davenport  (Iowa)  Democrat. 

Mandan  (N.  Dak.)  Pioneer. 

Hartford  (Conn  )  Courant. 

Willimantic  (Conn.)  Journal. 

New  Haven  (Conn.)  Register. 

Our  Youth  (New  York). 

New  Orleans  (La)  Daily  City  Item. 

St.  Joseph  (Mo.)  Daily  News. 

Redfield  (S.  Dak.)  Observer. 

Belfast  (Me.)  Republican  Journal. 

Portsmouth  (N.  H.)  Daily  Prog- 
ress. 

Portland  (Me  )  Sunday  Times. 

Providence  (R.  I.)  Telegram. 

Hudson  (N.  Y  )  Daily  Register. 

Omaha  (Nebr.)  Bee. 

Pittsburgh  (Pa.)  Dispatch. 

Wilkesbarre  (Pa.)  Record. 


Public  Opinion  (Washington, D.C.). 

Kate  Field's  Washington. 

Washington  (D.  C.)  Critic. 

Washington  (D.  C.)  Evening  Star. 

Richmond  Times. 

West  Point  (Va.)  Virginian. 

Danville  (Va.)  Times. 

Wheeling  (W.  Va.)  Letter. 

Charleston  (S.  C.)  News  and 
Courier. 

Charleston  (S.  C.)  World. 

Columbia  (S.  C.)  Register. 

Atlanta  (Ga.)  Constitution. 

Augusta  (Ga.)  Chronicle. 

Macon  (Ga.)  Telegraph. 

New  Orleans  Times-Democrat. 

Dallas  (Tex.)  Christian  Advocate. 

Fort  Worth  (Tex.)  Gazette. 

Houston  (Tex.)  Post. 

Louisville  Courier-Journal. 

National  Publisher  and  Printer 
(Louisville). 

Memphis  (Tenn.)  Avalanche. 

Cumberland  Presbyterian  (Nash- 
ville). 

Gospel  Advocate  (Nashville). 

Western  Christian  Advocate  (St. 
Louis). 

St.  Louis  Republican. 

Cleveland  Leader. 

Baptist  Journal  and  Register  (Cin- 
cinnati). 

Cincinnati  Commercial  Gazette. 

Jackson  (Ohio)  Herald. 

Indianapolis  Journal. 

Indianapolis  Sentinel. 

America  (Chicago). 

Christian  Worker  (Chicago). 

Chicago  Journal. 

Chicago  Journal  of  Commerce. 


128 


THE   QUESTION   OF   COPYRIGHT. 


Chicago  News. 
Chicago  Standard. 
Chicago  Times. 
Chicago  Indicator. 
Chicago  Evening  Mail. 
Chicago  Occident. 
Galena  (111.)  Press. 
Harvard  (111.)  Independent. 
Clearwater  (Minn.)  Sun-Wave. 
Uuluth  (Minn.)  Tribune. 
Minneapolis  Journal. 
Minneapolis  Tribune. 
St.  Paul  Pioneer  Press. 
Cedar  Rapids  (Iowa)  Republican. 
Des  Moines  (Iowa)  Leader. 
Burlington  (Kansas)  Republican. 
Wichita  Eagle. 
Denver  (Colo.)  Republican. 
Denver  (Colo.)  Times. 
Banning  (Cal.)  Herald. 
Oakland  (Cal.)  Tribune. 
Sacramento  (Cal.)  Record-Union. 
San  Francisco  News  Letter. 
Seattle  (Wash.)  Journal. 
Seattle  (Wash.)  Post  Intelligencer. 
Troy  (N.  Y.)  Observer. 
Philadelphia(Pa)  Taggarts' Times. 
Detroit  (Mich.)  Journal. 
Chelsea  (Mass.)  Gazette. 
Springfield  (Mass.)  New  England 

Homestead. 
Springfield     (Mass.)    Farm     and 

Home. 
Springfield     (Mass.)     Springfield 

Homestead. 
New  York  American  Agriculturist. 
Newton  (Mass.)  Journal. 
The  Banner  Weekly  (New  York). 
Syracuse  (N.  Y.)  Standard. 
Norwalk  (Conn.)  Hour. 


Red  Wing  (Minn.)  Republican. 

Wilmington  (Del.)  Sunday  Star. 

Bradford  (Pa.)  Era. 

Pittsburgh  (Pa.)  Post. 

Wall  Street  (N.  Y.)  Daily  News. 

Hartford  (Conn.)  Evening  Post. 

Cape  Cod  (Yarmouthport,  Mass.) 
Item. 

Birmingham  (Ala.)  Age-Herald. 

Dead  wood  (S.  Dak.)  Pioneer. 

Syracuse  (N.  Y.)  Herald. 

Vicksburg  (Miss.)  Post. 

Duluth  (Minn.)  Herald. 

Mt.  Joy  (Pa.)  Herald. 

Merchants  and  Manufacturers' 
Journal  (Baltimore). 

Salt  Lake  Herald. 

Sioux  Falls  (S.  Dak.)  Argus- 
Leader. 

Munsey's  Weekly  (New  York). 

Portland  (Me.)  Press. 

Portland  (Me.)  Express. 

Staunton  (Va.)  Spectator. 

Tarboro  (N.  C.)  Southerner. 

Bloomington  (111.)  Leader. 

New  Albany  (Ind.)  Ledger. 

Kentucky  State  Journal  (New- 
port, Ky.). 

Bismarck  (N.  Dak.)  Tribune. 

Chicago  Citizen. 

Lafayette  (Ind.)  Sunday  Times. 

Wilson  (N.  C.)  Advance. 

Arkansaw  Traveler  (Chicago). 

Spirit  of  the  Valley  (Harrison- 
burgh,  Va.). 

Paris  (Texas)  News. 

St.  Louis  (Mo.)  Age  of  Steel. 

St.  Louis  (Mo.)  Critic. 

Anniston  (Ala.)  Hot  Blast. 

Henderson  (Ky.)  Gleaner. 


INTERNATIONAL   COPYRIGHT.  129 

Colorado  Springs  Gazette.  Northern        Christian       Advocate 

Leadville  (Colo.)  Evening  Chron-       (Syracuse,  N.  Y.). 

icle.  The  Churchman  (New  York). 

Leadville   (Colo.)  Herald-Demo-  Cincinnati    Journal    and    Messen- 

crat.  ger. 

Buffalo  Christian  Advocate.  Troy  (N.  Y.)  Catholic  Weekly. 

Topeka  (Kans.)  Lance.  Racine  (Wis.)  Slavie. 

Spokane  Falls  (Wash.)  Review.      Winston  (N.  C.)  Western  Sentinel. 
Rhode    Island  Democrat    (Provi-  Boston  Morning  Star. 

dence,  R.  I.).  Notre  Dame  (Ind.)  Ave  Maria. 

Christian      Intelligencer      (New  Virginia     City     (Nev.)      Evening 

York).  Chronicle. 

Weekly  Union  and  Catholic  Times  New  London  (Conn.)  Day. 

(New  York).  St.  Louis  (Mo.)  Spectator. 

Woman's  Journal  (Boston).  Prescott  (Arizona)  Journal-Miner. 

RECAPITULATION. 

The  intelligent  voice  of  the  whole  country  asks 
for  the  passage  of  a  measure  substantially  the  same 
as  this  ;  authors,  publishers,  printers,  musical  com- 
posers, colleges,  educators,  librarians,  newspapers, 
and  magazines  join  in  the  prayer.  Clay  and  Web- 
ster favored  such  a  thing  in  the  past ;  Gladstone, 
Harrison,  Cleveland,  and  Cardinal  Gibbons  favor  it 
to-day.  Our  term  of  copyright  is  shorter  than  that 
sanctioned  by  the  verdict  of  the  civilized  world. 

Substantially  all  the  world,  except  Great  Britain 
and  the  United  States,  treat  foreigner  and  citizens 
alike  in  the  matter  of  copyright ;  Great  Britain  per- 
mits copyright  to  foreigners  on  the  same  basis  as 
citizens,  if  the  foreigner  be  at  the  time  of  publication 
on  British  soil  ;  the  Queen  is  empowered  by  law  to 
establish  reciprocity  with  us  if  we  will  permit  it, 
and  we  stand  alone  in  rejecting  and  refusing  over- 
tures.    A    hundred   international    copyright    agree- 


ISO  THE   QUESTION   OF   COPYRIGHT. 

ments  have  been  signed  ;  the  name  of  the  United 
States  is  in  no  one  of  them. 

It  is  shown  that  an  author  has  a  natural  exclusive 
right  to  his  intellectual  productions :  that  the  com- 
mon law  of  England  always  recognized  that  right, 
and  that  the  common  law  of  America  necessarily 
recognizes  that  right ;  that  our  present  procedure 
represses  authorship  by  putting  the  products  of  the 
labor  of  American  authors  into  untrammeled  com- 
petition with  the  products  of  English  labor,  for 
which  nothing  is  paid  ;  that  our  present  procedure 
deprives  American  authors  of  the  advantages  of  the 
British  market  ;  that  our  present  procedure  vitiates 
the  education  and  tastes  of  American  youth  ;  that 
our  present  procedure  bars  our  people  from  the 
benefits  of  the  good  literature  of  England,  and  that 
our  present  procedure  prevents  the  cheapening  of 
good  and  desirable  books  in  the  United  States.  It 
cannot  be  possible  that  the  American  Congress  will, 
with  full  knowledge,  permit  the  present  procedure 
to  continue. 


VIII. 

THE    PLATT-SIMONDS    COPYRIGHT    ACT, 
OF    MARCH,  1891. 

An   Act   to   amend    Title    Sixty,    Chapter   Three,    of    the    Revised 
Statutes  of  the  United  States,  Relating  to  Copyrights. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  section  forty- 
nine  hundred  and  fifty-two  of  the  Revised  Statutes  be,  and  the  same 
is  hereby,  amended  so  as  to  read  as  follows  : 

"  Sec.  4952.  '  The  author,  inventor,  designer,  or  proprietor  of  any 
book,  map,  chart,  dramatic  or  musical  composition,  engraving,  cut, 
print,  or  photograph  or  negative  thereof,  or  of  a  painting,  drawing, 
chromo,  statue,  statuary,  and  of  models  or  designs  intended  to  be 
perfected  as  works  of  the  fine  arts,  and  the  executors,  administrators, 
or  assigns  of  any  such  person  shall,  upon  complying  with  the  pro- 
visions of  this  chapter,  have  the  sole  liberty  of  printing,  reprinting, 
publishing,  completing,  copying,  executing,  finishing,  and  vending 
the  same  ;  and,  in  case  of  dramatic  composition,  of  publicly  per- 
forming or  representing  it  or  causing  it  to  be  performed  or  repre- 
sented by  others  ;  and  authors  or  their  assigns  shall  have  exclusive 
right  to  dramatize  and  translate  any  of  their  works  for  which  copy- 
right shall  have  been  obtained  tinder  the  laws  of  the  United  States." 

Sec.  2.  That  section  forty-nine  hundred  and  fifty-four  of  the 
Revised  Statutes  be,  and  the  same  is  hereby,  amended  so  as  to  read 
as  follows  : 

"  Sec.  4954.  The  author,  inventor,  or  designer,  if  he  be  still  liv- 
ing,2 or  his  widow  or  children,  if  he  be  dead,  shall  have  the  same 
exclusive  right  continued  for  the  further  term  of   fourteen  years, 

1  Omits:  "  Any  citizen  of  the  United  States  or  resident  therein, 
who  shall  be  " 

2  Omits  ;  "  And  a  citizen  of  the  United  States  or  resident  therein," 


132  THE   QUESTION   OF   COPYRIGHT. 

upon  recording  the  title  of  the  work  or  description  of  the  article  so 
secured  a  second  time,  and  complying  with  all  other  regulations  in 
regard  to  original  copyrights,  within  six  months  before  the  expiration 
of  the  first  term  ;  and  such  persons  shall,  within  two  months  from 
the  date  of  said  renewal,  cause  a  copy  of  the  record  thereof  to  be 
published  in  one  or  more  newspapers  printed  in  the  United  States 
for  the  space  of  four  weeks." 

Sec.  3.  That  section  forty-nine  hundred  and  fifty-six  of  the  Revised 
Statutes  of  the  United  States  be,  and  the  same  is  hereby,  amended 
so  that  it  shall  read  as  follows  : 

"  Sec.  4956.  No  person  shall  be  entitled  to  a  copyright  unless  he 
shall,  on  or  before  the  day  of  publication  in  this  or  any  foreign  coun- 
try, deliver  at  the  office  of  the  Librarian  of  Congress,  or  deposit  in 
the  mail  within  the  United  States,  addressed  to  the  Librarian  of 
Congress,  at  Washington,  District  of  Columbia,  a  printed  copy  of 
the  title  of  the  book,  map,  chart,  dramatic  or  musical  composition, 
engraving,  cut,  print,  photograph,  or  chromo,  or  a  description  of 
the  painting,  drawing,  statue,  statuary,  or  a  model  or  design  for  a 
work  of  the  fine  arts  for  which  he  desires  a  copyright,  nor  unless  he 
shall  also,  not  later  than  the  day  of  the  publication  thereof  in  this  or 
any  foreign  country,  deliver  at  the  office  of  the  Librarian  of  Con- 
gress, at  Washington,  District  of  Columbia,  or  deposit  in  the  mail 
within  the  United  States,  addressed  to  the  Librarian  of  Congress,  at 
Washington,  District  of  Columbia,  two  copies  of  such  copyright 
book,  map,  chart,  dramatic  or  musical  composition,  engraving, 
chromo,  cut,  print  or  photograph*  or  in  case  of  a  painting,  drawing, 
statue,  statuary,  model,  or  design  for  a  work  of  the  fine  arts,  a  pho- 
tograph of  the  same  :  Provided,  That  in  the  case  of  a  book,  photo- 
graph, chromo,  or  lithograph,  the  two  copies  of  the  same  required  to  be 
delivered  or  deposited  as  above  shall  be  printed  fro?n  type  set  within 
the  limits  of  the  United  States,  or  from  plates  made  therefrom,  or 
from  negatives,  or  drawings  on  stone  made  within  the  limits  of  the 
United  States,  or  from  transfers  made  therefrom.  During  the  exist- 
ence of  such  copyright  the  importation  into  the  United  States  of  any 
book,  chromo,  lithograph,  or  photograph,  so  copyrighted,  or  any  edition 
or  editions  thereof,  or  any  plates  of  the  same  not  made  from  type  set, 
negatives,  or  drawings  on  stone  made  within  the  limits  of  the  United 
States,  shall  be,  and  it  is  hereby,  prohibited,  except  in  the  cases  specified 
in  paragraphs  512  to  516  inclusive,  in  sectio7i  2  of  the  act  entitled 

1  These  words  replace  the  words  "  or  other  article," 


THE  ACT  OF   MARCH,    189I.  1 33 

'An  act  to  reduce  the  revenue  and  equalize  the  duties  on  imports  and 
for  other  purposes?  approved  Oct.  1,  1890  ;  and  except  in  the  case  of 
persons  purchasing  for  use  and  not  for  sale,  who  import  subject  to  the 
duty  thereon,  not  more  than  two  copies  of  such  book  at  any  one  time  ; 
and  except  in  the  case  of  newspapers  and  magazines,  not  containing  in 
whole  or  in  part  matter  copyrighted  tinder  the  provisions  of  this  act, 
unauthorized  by  the  author,  which  are  hereby  exempted  from  prohibi- 
tion of  importation  :  Provided,  nevertheless,  That  in  the  case  of  boohs 
in  foreign  languages,  of  which  only  translations  in  English  are  copy- 
righted, the  prohibition  of  importation  shall  apply  only  to  the  transla- 
tion of  the  same,  and  the  importation  of  the  boohs  in  the  original 
language  shall  be  permitted," 

Sec.  4.  That  section  forty-nine  hundred  and  fifty-eight  of  the 
Revised  Statutes  be,  and  the  same  is  hereby,  amended  so  that  it  will 
read  as  follows  : 

"  Sec.  4958.  The  Librarian  of  Congress  shall  receive  from  the 
persons  to  whom  the  services  designated  are  rendered  the  following 
fees  : 

"  First.  For  recording  the  title  or  description  of  any  copyright 
book  or  other  article,  fifty  cents. 

"  Second.  For  every  copy  under  seal  of  such  record  actually  given 
to  the  person  claiming  the  copyright,  or  his  assigns,  fifty  cents. 

"Third.  For  recording  and  certifying  any  instrument  of  writing 
for  the  assignment  of  a  copyright,  one  dollar. 

"  Fourth.  For  every  copy  of  an  assignment,  one  dollar. 

"  All  fees  so  received  shall  be  paid  into  the  Treasury  of  the  United 
States  :  Provided,  That  the  charge  for  recording  the  title  or  descrip- 
tion of  any  article  entered  for  copyright,  the  production  of  a  person 
not  a  citizen  or  resident  of  the  United  States,  shall  be  one  dollar,  to  be 
paid  as  above  into  the  Treasury  of  the  United  States,  to  defray  the 
expenses  of  lists  of  copyrighted  articles  as  hereinafter  provided  for. 

"And  it  is  hereby  made  the  duty  of  the  Librarian  of  Congress  to 
furnish  to  the  Secretary  of  the  Treasury  copies  of  the  entries  of  titles 
of  all  books  and  other  articles  wherein  the  copyright  has  been  com- 
pleted by  the  deposit  of  two  copies  of  such  book  printed  from  type  set 
within  the  limits  of  the  United  States,  in  accordance  with  the  provis- 
ions of  this  act  and  by  the  deposit  of  two  copies  of  such  other  article 
made  or  produced  in  the  United  States ;  and  the  Secretary  of  the 
Treasury  is  hereby  directed  to  prepare  and  print,  at  intervals  of  not 
more  than  a  week,  catalogues  of  such  title-entries  for  disttibution  to 


134  THE   QUESTION   OF   COPYRIGHT. 

the  collectors  of  customs  of  the  United  States  and  to  the  postmasters 
of  all  post-offices  receiving  foreign  mails,  and  such  weekly  lists,  as 
they  are  issued,  shall  be  furnished  to  all  parlies  desiring  them,  at 
a  sum  not  exceeding  five  dollars  per  annum  ;  and  the  Secretary  and 
the  Postmaster-General  are  hereby  empowered  and  required  to  make 
and  enforce  such  rules  and  regulations  as  shall  prevent  the  importa- 
tion into  the  United  States,  except  upon  the  conditions  above  specified, 
of  all  articles  prohibited  by  this  act." 

Sec.  5.  That  section  forty-nine  hundred  and  fifty-nine  of  the 
Revised  Statutes  be,  and  the  same  is  hereby,  amended  so  as  to  read 
as  follows  : 

"  Sec.  4959.  The  proprietor  of  every  copyright  book  or  other 
article  shall  deliver  at  the  office  of  the  Librarian  of  Congress,  or 
deposit  in  the  mail,  addressed  to  the  Librarian  of  Congress,  at 
Washington,  District  of  Columbia,1  a  copy  of  every  subsequent  edi- 
tion wherein  any  substantial  changes  shall  be  made  :  Provided,  how- 
ever, That  the  alterations,  revisions,  and  additions  made  to  books  by 
foreign  authors,  heretofore  published,  of  7vhich  new  editions  shall 
appear  subsequently  to  the  taking  effect  of  this  act,  shall  be  held  and 
deemed  capable  of  being  copyrighted  as  above  provided  for  in  this  act, 
unless  they  form  a  part  of  the  series  in  course  of  publication  at  the 
time  this  act  shall  take  effect." 

Sec.  6.  That  section  forty-nine  hundred  and  sixty-three  of  the  Re- 
vised Statutes  be,  and  the  same  is  hereby,  amended  so  as  to  read  as 
follows  : 

"  Sec.  4963.  Every  person  who  shall  insert  or  impress  such 
notice,  or  words  of  the  same  purport,  in  or  upon  any  book,  map, 
chart,  dramatic,  or  musical  composition,  print,  cut,  engraving,  or 
photograph,  or  other  article,  for  which  he  has  not  obtained  a  copy- 
right, shall  be  liable  to  a  penalty  of  one  hundred  dollars,  recoverable 
one-half  for  the  person  who  shall  sue  for  such  penalty  and  one-half 
to  the  use  of  the  United  States." 

Sec.  7.  That  section  forty-nine  hundred  and  sixty-four  of  the 
Revised  Statutes  be,  and  the  same  is  hereby,  amended  so  as  to  read 
as  follows : 

"Sec.  4964.   Every  person,  who  after  the  recording  of  the  title 

1  Omits :  "  within  ten  days  after  its  publication,  two  complete 
printed  copies  thereof,  of  the  best  edition  issued,  or  description  or 
photograph  of  such  article  as  hereinbefore  required,  and  " 


THE   ACT   OF   MARCH,    189I.  135 

of  any  book  and  the  depositing  of  two  copies  of  such  book,  as  pro- 
vided by  this  act,  shall,  contrary  to  the  provisions  of  this  act,  within 
the  term  limited,  and  without  the  consent  of  the  proprietor  of  the 
copyright  first  obtained  in  writing,  signed  in  presence  of  two  or 
more  witnesses,  print,  publish,  dramatize,  translate,  or  import,  or 
knowing  the  same  to  be  so  printed,  published,  dramatized,  translated, 
or  imported,  shall  sell  or  expose  to  sale  any  copy  of  such  book,  shall 
forfeit  every  copy  thereof  to  such  proprietor,  and  shall  also  forfeit 
and  pay  such  damages  as  may  be  recovered  in  a  civil  action  by  such 
proprietor  in  any  court  of  competent  jurisdiction." 

Sec.  8.  That  section  forty-nine  hundred  and  sixty-five  of  the 
Revised  Statutes  be,  and  the  same  is  hereby,  so  amended  as  to  read 
as  follows  : 

"  Sec.  4965.  If  any  person,  after  the  recording  of  the  title  of 
any  map,  chart,  dramatic  or  musical  composition,  print,  cut,  engrav- 
ing, or  photograph,  or  chromo,  or  of  the  description  of  any  painting, 
drawing,  statue,  statuary,  or  model  or  design  intended  to  be  per- 
fected and  executed  as  a  work  of  the  fine  arts,  as  provided  by  this 
act,  shall  within  the  term  limited,  contrary  to  the  provisions  of  this  act, 
and  without  the  consent  of  the  proprietor  of  the  copyright  first  ob- 
tained in  writing,  signed  in  presence  of  two  or  more  witnesses,  en- 
grave, etch,  work,  copy,  print,  publish,  dramatize,  translate,  or 
import,  either  in  whole  or  in  part,  or  by  varying  the  main  design 
with  intent  to  evade  the  law,  or,  knowing  the  same  to  be  so  printed, 
published,  dramatized,  translated ,  or  imported,  shall  sell  or  expose 
to  sale  any  copy  of  such  map  or  other  article  as  aforesaid,  he  shall 
forfeit  to  the  proprietor  all  the  plates  on  which  the  same  shall  be 
copied  and  every  sheet  thereof,  either  copied  or  printed,  and  shall 
further  forfeit  one  dollar  for  every  sheet  of  the  same  found  in  his 
possession,  either  printing,  printed,  copied,  published,  imported, 
or  exposed  for  sale,  and  in  case  of  a  painting,  statue,  or  statuary, 
he  shall  forfeit  ten  dollars  for  every  copy  of  the  same  in  his  pos- 
session, or  by  him  sold  or  exposed  for  sale  ;  one-half  there- 
of to  the  proprietor  and  the  other  half  to  the  use  of  the  United 
States." 

Sec.  9.  That  section  forty-nine  hundred  and  sixty-seven  of  the 
Revised  Statutes  be,  and  the  same  is  hereby,  amended  so  as  to  read 
as  follows  : 

"  Sec.  4967.  Every  person  who  shall  print  or  publish  any  manu- 
script whatever  without  the  consent  of  the  author  or  proprietor  first 


I36  THE   QUESTION   OF   COPYRIGHT. 

obtained,1  shall  be  liable  to  the  author  or  proprietor  for  all  damages 
occasioned  by  such  injury." 

Sec.  10.  That  section  forty-nine  hundred  and  seventy-one  of  the 
Revised  Statutes  be,  and  the  same  is  hereby,  repealed.2 

Sec.  11.  That  for  the  purpose  of  this  act  each  volume  of  a  book 
in  two  or  more  volumes,  when  such  volumes  are  published  separately 
and  the  first  one  shall  not  have  been  issued  before  this  act  shall  take 
effect,  and  each  number  of  a  periodical  shall  be  considered  an  inde- 
pendent publication,  subject  to  the  form  of  copyrighting  as  above. 

Sec.  12.  That  this  act  shall  go  into  effect  on  the  first  day  of  July, 
anno  Domini  eighteen  hundred  and  ninety-one. 

Sec.  13.  That  this  act  shall  only  apply  to  a  citizen  or  subject  of  a 
foreign  state  or  nation  when  such  foreign  state  or  nation  permits  to 
citizens  of  the  United  States  of  America  the  benefit  of  copyright  on 
substantially  the  same  basis  as  its  own  citizens  ;  or  when  such  foreign 
state  or  nation  is  a  party  to  an  international  agreement  which  provides 
for  reciprocity  in  the  granting  of  copyright,  by  the  terms  of  which 
agreement  the  United  States  of  America  may,  at  its  pleasure,  become  a 
party  to  such  agreement.  The  existence  of  either  of  the  conditions 
aforesaid  shall  be  determined  by  the  President  of  the  United  States  by 
proclamation  made  from  time  to  time  as  the  purposes  of  this  act  may 
require. 

The  following  are  the  sections  of  the  Tariff  act 
bearing  on  the  bill ; 

512.  Books,  engravings,  photographs,  bound  or  unbound,  etch- 
ings, maps,  and  charts,  which  shall  have  been  printed  and  bound  or 
manufactured  more  than  twenty  years  at  the  date  of  the  importation. 

513.  Books  and  pamphlets  printed  exclusively  in  languages  other 
than  English  ;  also  books  and  mnsic  in  raised  print,  used  exclusively 
by  the  blind. 

514.  Books,    engravings,   photographs,    etchings,   bound    or   un- 

1  Omits  :  "  if  such  author  or  proprietor  is  a  citizen  of  the  United 
States,  or  resident  therein," 

5  Sec.  4971  is  as  follows  :  "  Nothing  in  this  chapter  shall  be  con- 
strued to  prohibit  the  printing,  publishing,  importation,  or  sale  of 
any  book,  map,  chart,  dramatic  or  musical  composition,  print,  cut, 
engraving,  or  photograph,  written,  composed  or  made  by  any  person 
not  a  citizen  of  the  United  States  nor  resident  therein." 


THE  ACT  OF   MARCH,    189I.  I37 

bound,  maps  and  charts  imported  by  authority  or  for  the  use  of  the 
United  States,  or  for  the  use  of  the  Library  of  Congress. 

515.  Books,  maps,  lithographic  prints  and  charts  especially  im- 
ported, not  more  than  two  copies  in  any  one  invoice  in  good  faith, 
for  the  use  of  any  society  incorporated  for  educational,  philosophical, 
literary,  or  religious  purposes,  or  for  the  encouragement  of  the  fine 
arts,  or  for  the  use  or  by  order  of  any  college,  academy,  school,  or 
seminary  of  learning  in  the  United  States,  subject  to  such  regulations 
as  the  Secretary  of  the  Treasury  shall  prescribe. 

516.  Books,  or  libraries,  or  parts  of  libraries  and  other  household 
effects  of  persons  or  families  from  foreign  countries,  if  actually  used 
by  them  not  less  than  one  year,  and  not  intended  for  any  other  per- 
son or  persons,  nor  for  sale. 

(In  the  text  as  above  given,  the  changes  from  the  existing  law  are 
printed  in  italics,  and  the  omissions  are  specified  in  the  foot-notes.) 

Note. — Section  4953  of  the  Revised  Statutes,  which  prescribes 
twenty-eight  years  as  the  first  term  of  copyright,  being  left  unchanged, 
is  not  given  in  the  present  act.  For  its  wording,  see  text  of  the 
Act  of  1870,  p.  108. 


IX. 

ANALYSIS   OF   THE    PROVISIONS   OF 
THE   COPYRIGHT    LAW   OF    1891. 

The  purport  of  the  Chace-Breckinridge-Adams- 
Simonds-Platt  Copyright  Act  may  be  briefly  sum- 
marized as  follows : 

A. —  Works  of  Literature. 

1.  Copyright  is  granted  to  authors,  whether  res- 
ident or  non-resident,  for  a  term  of  twenty-eight 
years.  A  further  term  of  fourteen  years  (making 
forty-two  years  in  all)  is  granted  to  the  author  if  at 
the  expiration  of  the  first  term  he  is  still  living,  or 
to  his  widow  or  children  if  he  be  dead.  Unless  the 
author  survive  the  first  term  or  leave  widow  or 
children,  the  copyright  is  limited  to  twenty-eight 
years. 

2.  It  is  made  a  condition  of  such  copyright  for 
all  authors,  whether  resident  or  non-resident,  that 
all  the  editions  of  the  works  so  copyrighted  must 
be  entirely  manufactured  within  the  United  States; 
the  term  including  the  setting  of  the  type,  as  well 
as  the  printing  and  binding  of  the  books. 

This  provision  was  instituted  in  the  new  act  at  the 
instance  of  the  Typographical  Unions,  and  was  in- 
sisted upon  by  them  as  essential.     The  Unions  were 


ANALYSIS   OF  THE   COPYRIGHT   LAW    OF    1 89 1.   1 39 

under  the  apprehension  that  if  international  copy- 
right should  be  established  without  such  condition 
of  American  manufacture,  a  large  portion  of  the 
book  manufacturing  now  done  in  this  country  would 
be  transferred  across  the  Atlantic,  to  the  injury  of 
American  type-setters  and  printers,  and  of  the  other 
trades  employed  in  the  making  of  books. 

3.  For  a  non-resident  author,  the  further  condi- 
tion is  attached  to  his  American  copyright  that  the 
country  of  which  he  is  a  citizen  shall  concede  to 
American  authors  copyright  privileges  substantially 
equal  to  those  conceded  by  such  foreign  state  to 
its  own  authors. 

4.  It  is  also  made  a  condition  (applying  to  both 
resident  and  non-resident  authors)  that  the  book 
securing  American  copyright  shall  be  published  in 
the  United  States  not  later  than  the  date  of  its  pub- 
lication in  any  other  country.  Under  the  British 
act  now  in  force,  the  works  of  British  authors  must, 
in  order  to  preserve  their  British  copyright,  be  pub- 
lished in  Great  Britain  not  later  than  the  date  of 
their  publication  in  any  other  country.  It  will, 
therefore,  be  necessary  for  English  authors  to  make 
arrangements  with  their  English  and  American  pub- 
lishers for  a  simultaneous  date  of  publication  for 
both  sides  of  the  Atlantic. 

With  the  present  facilities  for  the  manifolding 
and  typewriting  of  manuscripts,  for  the  transmit- 
ting across  the  Atlantic  in  a  week's  time  advance 
proofs  or  advance  sheets,  and  for  making  final 
arrangements  by  cable,  there  need  be,  for  the  great 
majority  of  books  likely  to  be  reprinted,  no  material 


I4-0  THE   QUESTION   OF  COPYRIGHT. 

difficulties  in  the  way  of  securing  this  simultaneous 
publication. 

The  provision  was  believed  by  many  to  be  an 
essential  part  of  the  condition  that  all  editions  of 
books  securing  an  American  copyright  must  be 
manufactured  in  this  country.  It  was  argued 
that,  if  a  term  of  twelve  months  or  of  six  months 
were  to  be  allowed  to  a  foreign  author  within 
which  to  complete  arrangements  for  his  American 
editions,  the  importation  of  the  foreign  editions 
during  such  term  must  be  either  prohibited  or 
permitted.  In  the  former  case,  American  readers 
might,  for  an  indefinite  period,  be  prevented  from 
securing  any  copies  at  all  of  new  English  books,  a 
delay  which  would  certainly  bring  about  popular 
indignation.  In  the  second  case,  the  American 
market  could  be  to  some  extent  supplied  with  Eng- 
lish editions  before  any  American  editions  were  in 
readiness,  and  by  the  time  the  English  author  was 
ready  to  sell  his  American  copyright,  he  would  find 
that  such  copyright  possessed  very  little  market 
value. 

The  status  of  the  foreign  book  during  such  inter- 
regnum must  in  any  case  be  an  anomalous  one,  and 
would  be  likely  to  cause  complications. 

The  assertion  has  been  made  that  the  provision 
for  simultaneous  publication  was  inserted  by  the 
publishers  with  the  malicious  purpose  of  prevent- 
ing the  less  known  British  authors,  who  might  not 
be  in  a  position  to  make  advance  arrangements  for 
their  American  editions,  from  securing  under  the 
act  any  American  copyright. 


ANALYSIS   OF   THE   COPYRIGHT   LAW    OF    189I.    141 

It  is  evident,  however,  that  the  publishers  who 
were  interested  in  framing  the  bill  were  not  ac- 
tuated by  any  such  Machiavellian  intentions.  It 
had  been  made  clear  that  international  copyright 
was  expected  to  prove  a  business  advantage  to  all 
the  legitimate  publishers  engaged  in  reprinting 
English  books,  for  the  simple  reason  that  larger 
profits  could  be  secured  by  controlling  the  market 
for  authorized  editions  (even  when  these  were  sold 
at  the  lowest  popular  prices)  than  by  dividing  the 
market  with  a  number  of  unauthorized  editions. 
This  being  the  case,  it  was  of  course  to  the  interest 
of  the  publishers  to  secure  the  protection  of  Ameri- 
can copyright  for  as  many  foreign  works  as  possible, 
and  the  throwing  over  of  any  books  to  the  un- 
authorized reprinters  would  entail  loss  upon  pub- 
lishers as  well  as  upon  authors. 

It  was,  however,  the  belief  of  the  publishers,  in 
accepting  this  provision  with  the  other  typograph- 
ical conditions,  that  there  need  be  no  difficulty  in 
arranging  to  protect  the  works  of  new  authors  as 
well  as  those  of  the  well-known  writers. 

It  seems  probable,  also,  taking  into  account  all 
the  considerations,  that  the  provision  for  simultane- 
ous publication  is  unavoidable  as  long  as  the  other 
restrictions  in  the  act  are  retained.  When  these  can 
be  spared,  the  International  Copyright  Law  of  the 
United  States  can  properly  be  brought  under  the 
provisions  of  the  Berne  Convention. 

5.  The  regulations  previously  in  force  for  making 
the  entries  of  copyright  are  continued,  and  two 
copies  of  the  book,  together  with  one   copy  of  its 


1^2  THE   QUESTION   OF   COPYRIGHT. 

printed  title-page,  are  to  be  delivered,  on  or  before 
the  day  of  publication,  at  the  office  of  the  Librarian 
of  Congress,  together  with  a  fee  for  the  entry  of  the 
title,  such  fee  being,  in  the  case  of  an  American 
author,  fifty  cents,  and  in  the  case  of  a  foreign 
author  one  dollar. 

6.  While  the  importation,  during  the  existence  of 
the  American  copyright,  of  editions  of  the  books  so 
copyrighted,  whether  the  authors  of  the  same  be 
American  or  foreign,  is  prohibited,  the  importation 
of  such  books  is  permitted  to  the  extent  of  not  to 
exceed  two  copies  in  any  one  invoice,  said  copies 
being  certified  to  be  "  for  use  and  not  for  sale." 
Buyers  of  foreign  books  which  have  secured  an 
American  copyright,  who  may  prefer  for  their  libra- 
ries the  foreign  editions  of  such  books,  are,  under 
this  provision,  enabled  to  import,  either  direct  or 
through  an  importer,  not  to  exceed  two  copies  of 
such  editions.  This  provision  apparently  permits  the 
importation  (not  exceeding  two  copies  in  any  one 
shipment)  of  unauthorized  as  well  as  of  authorized 
foreign  editions  of  books  which  have  been  copy- 
righted in  the  United  States. 

7.  Foreign  periodicals  of  which  there  are  no 
American  editions  "  printed  from  type  set  in  the 
United  States,"  cannot  secure  for  their  contents  an 
American  copyright.  The  importation  of  such  peri- 
odicals is  left  unrestricted,  except  for  such  numbers 
as  may  contain  unauthorized  reprints  of  material 
which  has  already  in  some  other  form  secured  an 
American  copyright. 

An  English  author  who  copyrights  and  publishes 


ANALYSIS   OF   THE   COPYRIGHT   LAW   OF    189I.    143 

in  the  United  States  a  volume,  some  chapters  of 
which  have  previously  been  printed  in  an  English 
magazine,  will  probably  not  be  in  a  position  to  pre- 
vent the  reprinting  in  the  United  States  of  an  un- 
authorized issue  of  the  material  contained  in  such 
chapters.  For  this  portion  of  his  volume  no  Amer- 
ican copyright  can,  under  the  present  act,  be  secured. 
In  case  all  the  chapters  in  the  volume  have  already 
appeared  in  a  foreign  periodical,  its  American  copy- 
right has  probably  been  forfeited. 

8.  For  the  purpose  of  enforcing  the  prohibition 
of  the  importation  of  editions  of  books  securing 
American  copyright,  weekly  lists  of  the  books  of 
which  the  copyright  has  been  completed  are  to  be 
furnished  by  the  Librarian  of  Congress  to  the 
Secretary  of  the  Treasury,  and  by  the  Secretary  to 
the  various  customs  officers  concerned. 

The  non-importation  provision  makes  the  status 
of  books  by  foreign  authors,  which  have  secured  an 
American  copyright,  practically  identical  with  that 
heretofore  in  force  for  copyrighted  American  works, 
the  importation  of  foreign  editions  of  which  has 
of  necessity  always  been  prohibited.  The  whole 
theory  of  copyright  rests  on  the  exclusive  control 
by  the  author  of  a  specific  territory.  An  author  to 
whom,  under  domestic  or  international  law,  such  a 
control  has  been  conceded,  has  something  to  sell 
for  which  he  can  convey  a  clear  title,  and  for  which, 
therefore,  he  is  in  a  position  to  secure  a  price  rep- 
resenting the  full  market  value  of  his  production. 
An  author  who  can  convey  to  his  publisher,  in  place 
of  an  exclusive  territory,  only  the  right  to  compete 


144  THE   QUESTION   OF   COPYRIGHT. 

with  an  indefinite  number  of  other  publishers  of  the 
same  work,  has  no  real  "  copyright  "  to  sell,  and  the 
compensation  that  he  can  secure  will  be  of  necessity 
comparatively  inconsiderable. 

The  so-called  Sherman  amendment,  which  was 
discussed  at  some  length  during  the  consideration 
of  the  present  act,  authorized  the  importation  of 
foreign  editions  of  works  by  foreign  authors  securing 
American  copyright.  It  was  finally  rejected  on  the 
several  grounds:  that  it  was  incompatible  with  the 
other  sections  of  the  act,  which  provided  for  the 
American  manufacture  of  all  books  securing  Ameri- 
can copyright  ;  that  it  was  inconsistent  with  the 
purpose  of  the  act  to  place  on  a  uniform  status  all 
books  copyrighted  here,  whether  of  American  or 
foreign  origin ;  and  that  it  was  inconsistent  with  the 
essential  condition  of  "  copyright,"  which  stands  for 
an  exclusive  right  to  the  "  copy  "  for  a  specific  ter- 
ritory and  for  a  specific  term.  The  opponents  of 
the  amendment  cited,  as  an  instance  of  territorial 
copyright,  the  case  of  the  authorized  Tauchnitz  and 
Asher  editions  of  the  books  of  British  authors, 
which,  while  copyright  on  the  continent,  would,  if 
imported  into  Great  Britain,  be  infringements,  and 
the  importations  of  which  into  Great  Britain  had, 
therefore,  always  been  prohibited. 

The  Sherman  amendment,  in  its  original  form, 
authorized  the  importation  of  foreign  editions  of 
books  by  American  as  well  as  by  foreign  authors,  and 
did  not  even  stipulate  for  the  permission  of  the 
authors;  and  in  this  form  it  would  of  necessity  have 
rendered   null  and  void  domestic  as  well  as  inter- 


ANALYSIS    OF   THE   COPYRIGHT   LAW   OF   189I.    145 

national  copyright.  While  such  a  result  was  doubt- 
less not  the  intention  of  the  mover,  Senator  Sher- 
man of  Ohio,  or  of  Senators  Hale,  Plumb,  Carlisle, 
Daniels  and  the  others  who  supported  him,  this 
original  amendment  was  actually  carried  in  the 
Senate  by  a  vote  of  25  to  24.  It  was  rescinded 
three  days  later,  after  its  actual  purport  had  been 
made  clear  by  outside  criticism.  In  its  corrected 
shape,  in  which  it  authorized  the  importation  of 
foreign  editions  of  books  by  foreign  authors  only, 
it  was  finally  defeated  by  the  vote  of  21  to  28.  The 
whole  episode  was  a  noteworthy  instance  of  slovenly 
and  hap-hazard  legislation. 

9.  The  foreign  author  possesses  under  the  act  the 
same  control  over  translations  of  his  books  as  has 
previously  been  possessed  by  the  American  author, 
and  such  translations  can  hereafter  be  issued  only 
under  his  authorization.  This  provision  gives, 
namely,  to  German  and  French  authors  the  control 
of  the  issue  in  this  country  of  English  versions  of 
their  books,  and  to  English  authors  a  similar  control, 
not  only  over  a  reprint  in  English,  but  over  one 
made,  for  instance,  in  German.  There  is,  however, 
no  prohibition  of  the  importation  of  an  edition  of  a 
book  printed  in  a  language  other  than  that  in  which 
it  has  secured  its  American  copyright. 

B.— Works  of  Art. 

Foreign  artists  and  designers  are  accorded  the 
same  term  or  terms  of  copyright  as  those  given  to 
foreign  authors  (and  to  domestic  artists). 

The  condition  of  American  manufacture  is  at- 
tached to   the   copyright    of  reproductions   in  the 


146  THE   QUESTION   OF  COPYRIGHT. 

form  of  chromos,  lithographs,  or  photographs. 
American  manufacture  was,  however,  not  made  a 
condition  of  the  more  artistic  forms  of  reproduc- 
tions, and  foreign  artists  are,  therefore,  now  in  a 
position  to  control  the  American  copyright  of  en- 
gravings or  photogravures  of  their  productions, 
whether  these  engravings,  etc.,  are  "  manufactured  " 
in  Europe  or  in  the  United  States.  This  provision 
is  held  by  the  artists  and  art  publishers  of  France, 
who  have  in  the  past  years  suffered  severely  from 
American  "  appropriations  "  of  their  productions, 
to  be  of  special  importance. 

C. — Music. 

Musical  compositions  by  foreign  composers  are 
accorded  the  same  terms  of  American  copyright  as 
those  given  to  American  compositions,  and  for  pro- 
ductions of  this  class  American  manufacture  is  not 
made  a  condition  of  the  copyright. 

The  condition  of  reciprocity  applies  to  the  copy- 
right of  both  music  and  art. 


The  act  goes  into  effect  July  1st,  1891,  but  its 
provisions  become  actually  operative  between  the 
United  States  and  any  foreign  state  only  when  the 
president  has  made  announcement,  by  proclama- 
tion, that  the  necessary  conditions  of  reciprocity 
have  been  fulfilled  by  such  state. 

The  above  suggestions  concerning  the  purpose 
and  probable  operation  of  the  provisions  of  the  new 
act  are  submitted  with  all  deference  to  the  opinions 
of  better  authorities,  and  will  very  probably  be 
subject  to  correction  in  one  respect  or  another  after 


ANALYSIS  OF  THE  COPYRIGHT  LAW  OF   189I.      147 

the  act  has  come  into  effect.  It  is  very  probable 
that  some  questions  will  arise  which  cannot  be  def- 
initely settled  without  the  interpretation  of  the 
courts. 

G.  H.  P. 

March  25,  1891. 


X. 

EXTRACTS  FROM  THE  SPEECHES  OF 
SENATORS  PLATT  AND  EVARTS, 
IN  THE  COPYRIGHT  DEBATE  IN 
THE   SENATE. 

February  10,  1891. — Mr.  Platt,  in  calling  up 
the  Copyright  Bill,  said :  "  Mr.  President,  I  do 
not  wish  to  take  the  time  of  the  Senate  in  any 
lengthy  explanation  of  this  bill.  We  have  now 
waited  fifty-three  years  for  this  moment,  when  an 
international  copyright  law  could  be  enacted.  Fif- 
ty-three years  ago,  Henry  Clay  made  a  report  which, 
in  the  estimation  of  thoughtful  men,  thoroughly 
demonstrated  not  only  the  expediency,  but  the 
duty  of  extending  the  right  of  copyright  to  foreign- 
ers by  the  passage  of  an  international  copyright  law. 

"  I  will  simply  say  that  the  bill  proceeds  upon  one 
broad  fundamental  principle,  and  that  is  that  what 
a  man  fashions  by  his  brain,  his  genius,  his  imagina- 
tion, or  his  ingenuity  is  property,  just  as  much 
as  what  he  fashions  by  his  hands,  or  acquires  by 
manual  or  other  labor;  and  that,  being  property,  it 
should  be  property  the  world  over,  and  should  be 
recognized  as  such.  If  an  American  writes  a  book, 
the  right  to  publish  that  book  should  be  recognized 
as  property  not  only  in  this  country,  as  it  now  is 
under  the  Constitution,  but  as  property  everywhere. 
If   a  citizen  of  another  country  writes  a  book,  the 


EXTRACTS   FROM    SPEECHES.  I49 

right  to  publish  that  book  should  be  as  much 
property  in  this  country  as  in  his  own  country. 

"  That  is  the  broad  principle  on  which  this  bill 
rests — the  protection  of  property,  for  which  gov- 
ernments are  instituted.  The  principle  has  been 
recognized  in  the  case  of  patents,  and  not  a  little  of 
the  growth  and  prosperity  of  the  country  is  due  to 
the  fact  of  the  recognition  by  this  government,  that 
a  foreigner  who  invents  a  new  machine  or  discovers 
a  new  process  shall  be  entitled  to  secure  a  patent 
for  the  same  in  this  country. 

"  The  Constitution  puts  authors  first,  in  saying 
that  Congress  may  secure  to  them  exclusive  rights ; 
it  puts  them  before  inventors ;  but  the  legislation 
of  the  country  has  extended  the  provisions  of  the 
Constitution  in  the  matter  of  inventions  very  much 
further  than  it  has  in  the  matter  of  authorship,  and 
those  who  come  in  under  the  generic  term  of 
authors. 

"  I  believe  myself  no  measure  before  this  Congress 
is  so  calculated  to  enhance  not  only  the  intellectual, 
but  the  material  growth  of  this  country,  as  this 
copyright  bill,  and  I  trust  it  will  pass  without 
amendment. 

"  As  I  said,  we  have  waited  fifty-three  years  for 
this  opportunity,  and  this  opportunity  may  be 
wholly  lost  if  at  this  time  amendments  should  be 
pressed  in  the  Senate. 

"  I  do  not  know  that  I  should  call  this  a  perfect 
bill,  but  it  is  a  bill  which  has  had  long  considera- 
tion by  committees  of  the  Senate  and  of  the  House 
of  Representatives.     It  comes  to  us  from  the  House, 


I50  THE   QUESTION   OF   COPYRIGHT. 

and  now  is  our  opportunity  to  obtain  the  passage  of 
such  a  law.  If  there  is  anything  in  it  which  needs 
further  examination,  which  would  call  for  further 
legislation,  the  way  for  the  people  who  desire 
international  copyright  to  obtain  it  is  to  pass  this 
bill  while  we  have  the  opportunity  to  pass  it,  and  to 
establish  the  principle  of  copyright  in  this  country 
for  aliens,  and  copyright  in  Europe  for  Americans. 
Then,  if  the  provisions  of  the  act  may  be  found  to 
need  modification,  you  can  trust  to  the  future  that 
justice  will  be  done."     .     .     . 

February  14. — Mr.  Piatt  said  (replying  to  Mr. 
Allison  and  Mr.  Sherman) : 

.  .  .  "  The  fundamental  idea  of  a  copyright 
is  the  exclusive  right  to  vend,  and  the  prohibition 
against  importation  from  a  foreign  nation  is  neces- 
sary to  the  enjoyment  of  that  right.  It  is  the  right 
to  vend  within  the  country  where  the  copyright 
is  granted  that  gives  value  to  the  work  of  the 
author.     .     .     . 

"  I  was  saying  that  the  very  essence  of  copyright 
is  the  privilege  of  controlling  the  market.  That  is 
the  only  way  in  which  it  can  be  reached  ;  it  is  the 
only  way  in  which  the  right  can  be  vindicated  ;  it  is 
the  only  way  in  which  a  man's  property  in  the  work 
of  his  brain,  or  his  imagination,  or  his  genius,  can  be 
assured.  I  am  sorry  to  say  that  I  apprehend  a  good 
deal  of  this  contention  arises  from  the  lack  of  a 
desire  to  protect  a  man  in  that  species  of  property  ; 
and  I  am  afraid  the  idea,  so  prevalent,  and  so  in- 
creasing in  the  country  in  these  days,  that  property 
rights   generally    are    not    so    very    sacred,    has   to 


EXTRACTS   FROM   SPEECHES.  151 

some  extent  affected  the  consideration  of  this  sub- 
ject. 

"  Of  course  the  right  is  exclusive.  It  is  exclusive 
in  this  country  under  our  laws,  and  it  is  exclusive  in 
every  country  which  has  copyright  of  any  kind, 
national  or  international.  The  man  who  has  a 
copyright  in  England,  and  also  in  Germany,  cannot 
import  his  books  from  Germany  into  England,  or 
his  engravings  from  Germany  into  England,  unless 
he  be  the  proprietor  in  England  of  the  copyright  ; 
nor  can  the  English  proprietor  of  the  copyright 
export  his  books,  his  engravings,  or  whatever  be  the 
subject  of  his  copyright  into  Germany  unless  he  is 
the  proprietor  of  the  copyright  in  both  countries. 

"  There,  of  course,  the  consent  of  the  proprietor 
is  not  required ;  but  without  the  consent  of  the 
proprietor  of  the  copyright,  whether  he  be  the 
publisher  himself,  or  whether  the  person  to  whom 
the  author  has  transferred  his  right  is  the  publisher, 
exportation  and  importation  are  prohibited.  The 
right  is  exclusive,  and  it  must  be.  It  is  in  the 
essential  nature  and  characteristic  of  the  property 
that  it  should  be  thus  protected.  Why  should  not 
a  man's  property  in  his  work  be  protected  ?  Why 
should  anybody  want  to  import  from  a  foreign 
country  a  work  when  the  United  States  has  given 
to  the  person  of  this  country  its  sole  market  for  the 
work  ? 

"  Mr.  President,  I  insist  that  geographical  divis- 
ions ought  not  in  any  way  to  affect  the  question  of 
copyright.  Having  once  laid  the  foundation,  that 
it  rests  upon  the  essential  and  inherent  right  of  a 


152  THE   QUESTION   OF   COPYRIGHT. 

man  to  be  protected  in  his  property,  it  does  not 
make  any  difference  whether  the  owner  of  it  be  an 
American  or  a  foreigner.  If  the  author  or  the  artist 
in  this  country,  being  an  American  citizen,  is  entitled 
to  be  protected  in  the  reproduction  of  his  work  in 
this  country,  there  is  nothing  in  the  fact  that  a  sea 
divides  us  from  another  country  which  would  war- 
rant us  in  saying  that  our  country  should  have  a 
right  to  appropriate  the  work  of  the  foreign  au- 
thor or  of  the  foreign  artist.  It  is  appropriation 
that  people  are  after  when  they  seek  to  limit  copy- 
right to  a  single  country,  and  to  the  citizens  of  a 
single  country."     .     . 

February  10. — Mr.  Evarts  said,  referring  more 
particularly  to  the  Sherman  amendment :  "  Mr. 
President,  I  rise  for  the  purpose  of  speaking  to  the 
amendments  proposed,  but  I  will  submit  a  few  ob- 
servations brought  out  by  the  treatment  given  to  this 
subject  by  the  Senator  from  Ohio  (Mr.  Sherman). 

"The  Senator  seems  to  misconceive  the  nature  of 
copyright  or  patent  protection. 

"  We  perfectly  understand  it  in  our  application 
under  our  Constitution  and  our  laws  to  the  copy- 
rights and  the  patent  rights  which  we  grant  here  to 
our  citizens.  It  has  nothing  to  do  with  the  question 
whether  there  should  or  should  not  be  any  profit  or 
tax  of  importation  or  otherwise,  or  any  excise  upon 
printing  books  which  may  fall  under  this  or  that 
interest  of  Congress  in  its  revenue  system.  So  it  is 
in  regard  to  any  foreign  patent  or  any  foreign  author. 

"The  sole  question  for  us  is  what  we  shall  do 
concerning  something  which  is  the  essential  nature 


EXTRACTS   FROM    SPEECHES.  1 53 

of  copyright  and  patent  protection,  namely,  monop- 
oly. It  does  not  touch  the  question  whether  there 
shall  be  taxation  here  or  there  on  the  general  prop- 
erty of  the  country,  or  on  general  importations  into 
the  country.  It  is  this  one  direct  proposition,  as 
correctly  expressed  in  the  Constitution  as  the  most 
careful  phrase  that  could  be  adopted.  It  is  to  en- 
courage these  advantages  to  the  world,  that  is,  this 
world  of  ours,  in  this  country,  so  that  we  can  draw 
into  the  service  of  the  community  what  is,  as  orig- 
inated, the  private  possession  of  inventors  and  writ- 
ers. 

"  It  is  a  monopoly  with  them  before  they  make 
their  composition  or  invention  open,  and  it  is  simply 
a  contract  which  has  been  thought  wise  for  the 
public  welfare  that  we  shall  say  to  the  author  or 
inventor,  '  for  a  limited  period  you  shall  have  a 
monopoly  under  certain  conditions  of  public  use 
while  your  monopoly  exists,  and  afterwards  it  shall 
be  free.' 

"So  no  confusion  of  ideas  should  be  introduced 
into  this  debate,  based  on  the  fact  that  we  are  now 
proposing  to  make  the  same  treaty  of  monopoly 
with  a  foreign  author  that  we  make  habitually  with 
our  own  authors.  We  have  led  the  way,  in  regard 
to  patent  rights,  by  which  we  have  drawn  into  the 
advantage  of  this  country  patent  inventions  upon 
the  principle  of  monopoly  equivalent  to  our  own ; 
and  the  question  then  as  to  whether  we  should  be 
at  liberty  to  import  also  the  manufactured  inven- 
tions on  a  duty  or  because  one  would  like  to  have 
an  article  that  was  made  by  a  Sheffield  manufacturer 


154  THE   QUESTION   OF   COPYRIGHT. 

instead  of  by  a  Lowell  manufacturer  is  wholly  out- 
side of  the  question  of  monopoly. 

"  It  has  no  proper  application  to  the  case.  It  is 
an  invasion  of  the  principle.  If  you  do  not  wish  to 
give  a  monopoly  then  do  not  give  it,  but  do  not  say 
with  one  word,  '  we  give  you  a  monopoly,  provided, 
however,  that  such  monopoly  can  be  evaded  by  the 
importation  of  manufactures  produced  abroad. 

PUBLISHERS   AND   THE   COPYRIGHT   BILL. 

The  passage  on  the  last  day  of  Congress  of  the 
International  Copyright  Bill  was  preceded  by  an 
interesting  debate  in  the  Senate  over  the  report  of 
the  Conference  Committee.  Apropos  of  the  charges 
that  the  bill  contained  undue  restrictions  by  reason 
of  "the  greed  of  the  publishers,"  it  is  interesting  to 
read  the  remarks  on  this  point  of  Senator  Piatt  and 
of  Senator  Hiscock,  who  were  both  members  of 
the  Senate  Conference  Committee. 

According  to  the  report  of  the  debate  in  the  Con- 
gressional Record,  Senator  Piatt  said  : 

"  I  think  the  Senator  from  Delaware  hardly  does 
the  publishers  of  this  country  justice  in  the  state- 
ment which  he  has  just  made.  I  think,  so  far  as  the 
publishers  are  concerned,  they  would  be  willing,  and 
have  been  willing,  to  accept  a  good  many  modifica- 
tions of  the  bill ;  but  the  people  who  do  the  work, 
the  printers,  have  insisted,  and  I  think  with  a  great 
deal  of  justice,  that  if  we  are  going  to  allow  to  a 
foreigner  the  exclusive  market  for  his  work  we 
ought  at  least  to  couple  with  it  a  provision  that  the 


EXTRACTS   FROM   SPEECHES.  1 55 

work  shall  be  done  in  this  country,  inasmuch  as, 
practically,  if  an  American  goes  abroad  to  obtain  a 
copyright  in  a  foreign  country  the  work  on  his  book 
will  be  done  in  that  country." 

Senator  Hiscock  said  (also  in  reply  to  Senator 
Gray)  : 

"The  Senator  certainly  should  not  insinuate  in  any 
way,  or  charge  that  as  against  the  proposition  we 
have  been  pressed  by  the  publishers,  or  that  they 
have  thronged  the  lobby  in  opposition  to  it.  I  say 
to  him  that  in  my  opinion  that  the  proposition 
(z.  e.,  the  Sherman  amendment)  will  be  entirely 
acceptable  to  the  publishers.  But  there  is  an 
interest  that  is  entitled  to  be  heard  upon  this 
great  question,  the  printers  ;  and  they  have  been 
heard.  In  their  judgment  a  bill  ought  not  to  pass 
here,  the  effect  of  which  might  be  to  transfer  the 
publication  of  books,  either  of  this  country  or  of 
foreign  authors  to  be  sold  here,  to  England,  Ger- 
many, France,  or  the  islands  of  the  sea.  The  argu- 
ments which  they  have  urged  against  it,  the  necessi- 
ties which  they  have  urged,  were  controlling  upon 
the  House  conferees,  and  I  do  not  hesitate  to  say 
that  they  have  controlled  my  action  in  this  matter. 
Do  not  lay  it,  therefore,  to  the  publishers  ;  they  may 
be  eliminated  ;  and  place  the  blame,  the  fault,  if 
there  is  any,  precisely  where  it  belongs.  I  do  not 
believe  it  to  be  a  fault,  or  that  they  are  to  blame 
for  it." 

This  evidence  from  the  two  men  who  were  best 
acquainted  with  the  facts  shows  clearly  the  real 
attitude  of  the  publishers  in  relation  to  the  bill. 


THE  VOTE  IN  THE  HOUSE  OF  REPRE- 
SENTATIVES, DECEMBER  3,  1890,  BY 
WHICH  THE  COPYRIGHT  BILL  WAS 
PASSED. 


Yeas. 

Nays. 

Adams. 

Abbott. 

Allen,  Mich. 

Atkinson,  Pa. 

Andrew. 

Barnes. 

Arnold. 

Bergen. 

Atkinson,  W.  Va. 

Bland. 

Baker. 

Blount. 

Banks. 

Breckinridge,  Ark, 

Bartine. 

Brewer. 

Bayne. 

Brickner. 

Beckwith. 

Brookshire. 

Belden. 

Brown,  Ind. 

Belknap. 

Buchanan,  Va. 

Bingham. 

Candler,  Ga. 

Boothman. 

Cannon. 

Boutelle. 

Clements. 

Breckinridge,  Rv. 

Cobb. 

Brosius. 

Cooper,  Ind. 

Brunner. 

Crisp. 

Buchanan,  N.  J. 

De  Lano. 

Burrows. 

Dibble. 

Burton. 

Dockery. 

Butterworth. 

Dolliver. 

Bynum. 

Edmunds. 

Caldwell. 

Enloe. 

Campbell. 

Finley. 

Carter. 

Flick. 

Caswell. 

Forman. 

Cheadle. 

Forney. 

VOTE  IN  THE  HOUSE  OF  REPRESENTATIVES.        1 57 


Yeas. 
Cheatham. 
Chipman. 
Clancy. 
Clark,  Wyo. 
Cogswell. 
Coleman. 
Comstock. 
Cooper,  Ohio. 
Covert. 
Craig. 

Culbertson,  Pa. 
Cummings. 
Cutcheon. 
Dalzell. 
Dargan. 
Darlington. 
Dingley. 
Dorsey. 
Dunnell. 
Dunphy. 
Evans. 
Farquhar. 
Fitch. 
Flower. 
Geissenhainer. 
Gibson. 
Greenhalge. 
Grout. 

Hansbrough. 
Harmer. 
Hemphill. 
Hermann. 
Houk. 
Ketcham. 
Kinsey. 
La  Follette. 
Laidlaw. 
Langston. 
Lansing. 


Nays. 
Fowler. 
Gest. 

Goodnight. 
Hare. 
Hatch. 
Haugen. 
Hays,  Iowa. 
Haynes. 
Heard. 

Henderson,  111. 
Henderson,  Iowa. 
Henderson,  N.  C. 
Herbert. 
Holman. 
Hooker. 
Kelley. 
Kerr,  Iowa 
Kilgore. 
Lacey. 
Lane. 
Lanham. 
Lester,  Va. 
Mansur. 
Martin,  Ind. 
Martin,  Texas. 
McClellan- 
McCreary. 
McMillan. 
McRae. 
Mills. 

Montgomery. 
Moore,  Texas. 
Morrill. 
Norton. 
Oates. 
O'Ferrall. 
O'Neill,  Ind. 
Owens,  Ohio. 
Paynter. 


153 


THE   QUESTION   OF   COPYRIGHT. 


H. 


Yeas. 
Lawler. 
Laws. 
Lee. 

Lester,  Ga. 
Lodge. 
Magner. 
Maish. 
McAdoo. 
McCarthy. 
McComas. 
McDuffie. 
McKenna. 
McKinley. 
Miles. 
Miller. 
Moffitt. 
Moore,  N 
Morey. 
Morrow. 
Morse. 
Mudd. 
Mutchler. 
O'Donnell. 
O'Neil,  Mass. 
O'Neil,  Pa. 
Osborne. 
Owen,  Ind. 
Payne. 
Penington. 
Post. 
Price. 

Quackenbush. 
Quinn. 
Randall. 
Reilly. 
Reyburn. 
Rusk. 
Russell. 
Sawyer. 


Nays. 
Pay son. 
Peel. 
Perkins. 
Perry. 
Peters. 
Pierce. 
Ray. 

Reed,  Iowa. 
Richardson. 
Rockwell. 
Rogers. 
Sayers. 
Skinner. 
Smith,  111. 
Smith,  W.  Va. 
Springer. 
Stewart,  Texas. 
Stone,  Ky. 
Sweney. 
Taylor,  Ohio. 
Thomas. 
Turner,  Ga. 
Wheeler,  Ala. 
Whitelaw. 
Whiting. 
Wike. 

Williams,  111. 
Wilson,  Mo. 
Republicans  25,   Democrats  70, 
in  all  95. 


VOTE  IN  THE  HOUSE  OF  REPRESENTATIVES.        I  59 


Yeas. 
Scull. 
Sherman. 
Shively. 
Simonds. 
Smyser. 
Snider. 
Spinola. 
Spooner. 
Stephenson. 
Stewart,  Vt. 
Stivers. 
Stone,  Pa. 
Sweet. 
Tarsney. 
Taylor,  Tenn. 
Taylor,  Ohio. 
Townsend,  Colo. 
Townsend,  Pa. 
Tracey. 
Tucker. 
Vandever. 
Van  Schaick. 
Vaux. 
Waddill. 
Wade. 
Walker. 
Wallace,  N.  Y. 
Wiley. 
Willcox. 
Williams,  Ohio. 
Wilson,  Wash. 
Wilson,  W.  Va. 
Yoder. 
Republicans  96,  Democrats  43, 
in  all  139. 


VOTE  IN  THE  SENATE  MARCH  4,  1891, 
BY  WHICH  THE  COPYRIGHT  BILL 
WAS  PASSED. 

(At  2  o'clock  in  the  Morning.) 


Yeas. 

Nays. 

Aldrich. 

Bate. 

Allen. 

Berry. 

Chandler. 

Call. 

Dawes. 

Carlisle. 

Dixon. 

Casey. 

Dolph. 

Coke. 

Edmunds. 

Cullom. 

Farwell. 

Daniel. 

Frye. 

Faulkner. 

Hawley. 

Gorman. 

Hiscock. 

Gray. 

Hoar. 

Ingalls. 

Jones  of  Nevada. 

Kenna. 

McMillan. 

Morgan. 

Morrill. 

Pettigrew. 

Pasco.1 

Plumb. 

Pierce. 

Ransom. 

Piatt. 

Sherman. 

Sawyer. 

Walthall. 

Shoup. 

Republicans  6,    Democrats 

Spooner. 

in  all  19. 

Stanford. 

Stewart. 

13. 


1  Voted    first    with    the    opponents  :    then    changed   his    vote  for 
the  purpose  of  moving  reconsideration. 


VOTE   IN   THE   SENATE.  l6l 


Yeas. 
Warren. 
Washburn. 
Wilson  of  Iowa. 
Wolcott. 
Republicans   26,  Democrats  I, 
in  all  27. 
11 


XL 

RESULTS   OF  THE   COPYRIGHT   LAW. 

Reprinted  from  the  Forum  for  January,  1894. 

The  Copyright  Act  which  became  law  March  4, 
1 89 1,  and  the  provisions  of  which  went  into  effect 
July  1st  of  the  same  year,  did  not  constitute  a  new 
statute,  but  comprised  simply  amendments  to  cer- 
tain sections  of  the  statute  relating  to  copyright, 
which  had  been  in  force  since  July,  1870.1 

It  is  not  practicable  to  state  with  precision  what 
the  effects  of  the  law  have  been  during  the  three 
years  of  its  operation,  as  there  is  a  lack  of  trust- 
worthy statistics  concerning  literary  or  publishing 
conditions  either  for  the  period  prior  to  the  act  or 
for  the  present  time.  In  arriving  at  any  approxi- 
mate estimate  of  these  effects,  it  is  in  order,  I  judge, 
to  consider:  first,  the  results  secured  by  authors, 

1  The  most  important  changes  in  the  law  (omitting  from  present 
consideration  a  few  matters  of  technical  detail)  were  as  follows. 
First  :  Its  provisions,  previously  limited  to  the  works  of  authors 
(under  which  term  I  include  for  convenience  artists  and  composers) 
who  were  "  residents  of  the  United  States,"  were  extended  to  cover 
the  productions  of  non-residents  on  condition  that  such  non-resident 
author  was  a  resident  of  a  country  which  should  concede  to  American 
authors  similar  privileges.    Second  :  All  editions  of  the  works  copy- 


RESULTS   OF   THE   COPYRIGHT   LAW.  1 63 

American  or  foreign ;  second,  the  results  for  Ameri- 
can readers  ;  and,  third,  the  effect  on  American  pub- 
lishing conditions. 

The  most  important  results  of  the  new  copyright 
policy  are  naturally  to  be  looked  for  in  the  literary 
relations  between  the  United  States  and  Great  Bri- 
tain, relations  which  the  supporters  of  international 
copyright  naturally  had  particularly  in  view. 

Before  the  Copyright  Act,  the  more  reputable  of 
the  English  publishers  who  were  not  willing  to 
"  appropriate  "  American  books  were  deterred  from 
arranging  for  authorized  editions  by  the  certainty 
that,  if  the  books  found  favor  with  the  English  pub- 
lic, "piracy"  editions  would  promptly  appear.  The 
appearance  of  many  American  titles  in  the  lists  of 
the  leading  English  publishers,  and  the  increased 
importance  of  the  publishing  done  by  American 
firms  through  their  branch  houses  in  London,  are 
evidence  that  satisfactory  arrangements  with  Ameri- 
can authors  are  now  being  made,  and  that  there 
must  be  a  substantial  increase  in  the  returns  from 
their  English  editions.  It  is  probable,  nevertheless, 
that  these  English  returns  are  less  considerable  than 
were  hoped  for.    Certain  authors  who  have  assumed 

righted  must  be  entirely  manufactured  in  the  United  States.  This 
provision  imposed  a  new  restriction  upon  American  authors,  who  had 
previously  been  at  liberty  to  have  their  books  manufactured  on  either 
side  of  the  Atlantic.  Third  :  The  book,  to  secure  American  copy- 
right, must  be  published  in  the  United  States  not  later  than  the  date 
of  its  publication  in  any  other  country.  The  provisions  of  the  act 
became  operative  between  the  United  States  and  any  foreign  state 
only  when  the  President  had  made  announcement,  by  proclamation, 
that  the  necessary  conditions  of  reciprocity  had  been  fulfilled  by  such 
State. 


164  THE   QUESTION   OF   COPYRIGHT. 

that  the  lack  of  international  copyright  was  the  only 
obstacle  that  prevented  a  transatlantic  success  have 
learned  that  there  are  other  difficulties  in  the  way. 
The  English  public  is  conservative.  Scholarly  read- 
ers are  not  easily  convinced  of  the  scholarly  trust- 
worthiness or  importance  of  works  "  from  the  States," 
while  in  light  literature,  and  particularly  in  fiction, 
the  supply  from  English  pens  is  more  than  sufficient 
to  meet  the  demand.  It  is  further  the  case  that  for 
the  last  two  years,  and  particularly  during  the  year 
1893,  there  has  been  a  continual  depression  in  the 
book-trade  of  Great  Britain,  and  the  English  book- 
sellers have  been  less  willing  and  less  able  to  invest 
in  "  new  and  experimental  lines  of  literature,"  to 
which  class,  in  their  opinion,  books  by  transatlantic 
writers  would  necessarily  belong.  The  sales  in  Eng- 
land of  authorized  editions  of  "average"  American 
books  have  therefore  increased  less  rapidly  than  was 
hoped.  There  has,  however,  been  a  steady  growth 
in  these  sales,  and  it  may  be  confidently  predicted 
that  the  near  future  will  witness  a  more  rapid  devel- 
opment. The  gains,  on  the  other  hand,  in  the  case 
of  authors  who  can  command  a  public,  have  doubt- 
less been  very  substantial.  American  authors  whose 
names  have  become  known  in  England  are  begin- 
ning also  to  secure  some  receipts  from  Paris,  Leip- 
sic,  Berlin,  and  Stuttgart,  but  for  some  time  to 
come  such  Continental  receipts  can  hardly  be 
considerable. 

American  publishers  are  now  in  a  position  to  give 
to  American  fiction  a  larger  measure  of  favorable 
attention  than  was  possible  when  such  volumes  had 


RESULTS   OF   THE   COPYRIGHT   LAW.  l6$ 

to  compete  with  English  stories  that  had  not  been 
paid  for  ;  and  the  removal  of  this  disturbing  factor 
must  have  proved  a  definite  advantage  to  American 
novelists,  and  especially  to  the  newer  writers.  This 
advantage  has,  however,  been  lessened  or  delayed 
by  the  fact  that  during  the  last  year  large  stocks  of 
"  remainders  "  of  the  novels  issued  by  the  "  reprint- 
ing "  firms  that  have  become  bankrupt  have  been 
crowded  upon  the  book-stands  and  offered  at  nomi- 
nal prices.1  The  disappointment  of  English  authors 
with  the  results  of  the  copyright  law  has  been  keener 
than  that  of  their  American  brethren,  because  their 
expectations  were  so  much  larger.  During  the  half- 
century  in  which  international  copyright  has  been 
talked  about,  many  statements  had  been  put  into 
print  and  talked  over  in  English  literary  circles,  set- 
ting1 forth  the  enormous  circulation  secured  in  "  the 
States"  for  unauthorized  editions  of  English  books, 
and  particularly  of  English  fiction  ;  and  large  esti- 
mates were  arrived  at  as  to  the  great  fortunes  that 
were  being  made  out  of  these  editions  by  the  pirati- 
cal publishers.  The  writers  whose  names  were 
known  on  this  side  of  the  Atlantic,  and  who,  after 
arranging  for  authorized  American  editions,  had  re- 
ceived the  honor  of  being  pirated,  convinced  them- 
selves— not  unnaturally — that,  when  this  piratical 
competition  was  removed,  the  payments  from  their 
authorized  publishers  could  be  very  greatly  in- 
creased.    The  authors  who  had  secured  neither  the 

1  Since  the  writing  of  this  article,  the  competition  of  the  increasing 
group  of  ten  cent  and  five  cent  magazines  is  exerting  a  serious  influ- 
ence on  the  circulation  of  fiction  in  book  form.     March,  1896. 


l66  THE   QUESTION   OF   COPYRIGHT. 

tangible  advantage  of  an  authorized  edition  nor  the 
empty  compliment  of  a  piratical  one,  felt  in  many 
cases  equally  assured  that  it  was  only  the  lack  of 
copyright  protection  which  prevented  American  pub- 
lishers from  paying  large  sums  for  the  privilege  of 
introducing  their  books  to  the  American  public. 
With  both  groups  of  authors  the  phrase  "  the  mill- 
ions of  American  readers  "  was  likely  to  be  used.  I 
have  myself  heard  the  phrase  "  the  sixty-five  millions 
of  American  readers."  It  was  inevitable  that  the 
results  should  bring  disappointment  to  such  glowing 
expectations.  As  Mrs.  Todgers  plaintively  remarked 
of  her  trials  in  keeping  a  London  boarding-house : 
"A  joint  won't  yield — a  whole  animal  would  n't 
yield — the  amount  of  gravy  the  young  gentlemen 
expect  each  day  at  dinner." 

There  has  been,  nevertheless,  a  substantial  ad- 
vance. The  authors  of  the  first  rank  (using  the  term 
simply  for  commercial  importance)  have  certainly 
very  largely  increased  the  receipts  from  their  Ameri- 
can sales,  while  for  authors  of  the  second  grade  there 
has  doubtless  also  been  a  satisfactory  gain.  I  think 
it  probable — though  on  such  a  point  exact  statistics 
are  unobtainable — that  in  one  division  of  literature, 
that  of  third-class  or  lower  grade  fiction,  there  has 
been  a  decrease  in  the  supply  taken  from  England 
for  American  readers.  There  never  had  been  any 
natural  demand  in  America  for  English  fiction  of 
this  class,  and  it  had  been  purveyed  or  "  appropri- 
ated "  chiefly  in  order  to  supply  material  for  the 
weekly  issues  of  the  cheap  "  libraries."  The  lessen- 
ing of  the  supply  of  this  class  of  literary  provender 


RESULTS   OF   THE   COPYRIGHT   LAW.  167 

may  be  classed  as  one  of  the  direct  gains  from  inter- 
national copyright. 

English  authors  have  to-day  the  satisfaction  that 
they  are  able  to  place  their  books  before  their 
American  readers  with  a  correct  and  complete  text. 
Before  the  amended  Copyright  Law,  English  books 
had  to  be  reprinted  on  what  might  be  called  a 
"  scramble  system."  It  was  often  not  practicable  to 
give  to  the  printing  of  the  authorized  editions  sufri- 
cent  time  and  supervision  to  ensure  a  correct  typo- 
graphy, while  the  unauthorized  issues  were  not 
infrequently — either  through  carelessness  or  for  the 
sake  of  reducing  the  amount  and  the  cost  of  the 
material — seriously  garbled.  The  transatlantic  au- 
thor, who  was  then  helpless  to  protect  himself,  can 
now,  of  course,  arrange  to  give  at  his  leisure  an 
"  author's  reading  "  to  his  proofs. 

The  copyright  law  has,  in  my  opinion,  secured 
substantial  advantages  for  American  book-buyers. 
In  one  class  of  literature  only  have  the  prices  in- 
creased. The  cheapest  issues  of  current  new  fiction 
sell  at  forty  cents  or  fifty  cents,  in  place  of  fifteen 
cents  or  twenty-five  cents.  It  is  to  be  borne  in 
mind,  however,  that  these  prices  do  not  stand  for 
the  same  amount  or  for  the  same  quality  of  material. 
The  fifteen-cent  "quarto  "  of  the  " libraries,"  hastily 
and  often  carelessly  printed,  was  an  offence  to  the 
eye  and  probably  not  infrequently  an  injury  to  the 
sight.  It  was  not,  in  the  proper  sense  of  the  term,  a 
book,  and  could  not  be  preserved  as  one.  It  was 
usually  bought  for  railroad  reading,  notwithstanding 
the  unsuitableness  of  its  typography  for  such  a  pur- 


l68  THE   QUESTION   OF   COPYRIGHT. 

pose,  and  was  often  thrown  away  at  the  end  of  the 
journey.  The  decently  printed  half-dollar  novel  of 
to-day  gives  much  better  value  for  its  cost,  and  may 
be  preserved  to  be  of  service  to  many  readers. 

It  is  the  case  also  that  the  fifteen-cent  and  twenty- 
five  cent  "  libraries  "  were  not  crushed  out  by  the 
copyright  law,  but  for  some  time  before  the  passage 
of  the  law  were  rapidly  coming  to  an  end,  as,  even 
with  the  aid  of  pirated  material,  they  could  not  be 
published  at  a  profit.  A  large  number  of  new  con- 
cerns, impressed  with  the  belief  that  money  was  to 
be  made  in  the  publishing  of  pirated  fiction,  had  gone 
into  the  "  reprint  "  business  shortly  before  the  pass- 
age of  the  Copyright  Act.  Their  cut-throat  compe- 
tition speedily  destroyed  the  very  inconsiderable 
possibility  of  profit  in  the  business.  Books  availa- 
ble for  reprinting  became  exhausted,  so  that  it  was 
difficult  to  secure  enough  of  material  to  keep  up  the 
weekly  issues  required  to  secure  periodical  postage 
rates,  and,  as  one  result,  the  stuff  used  for  the  weekly 
issues  became  more  and  more  "  rubbishy."  Even 
before  the  act,  there  had  been  not  a  few  failures 
among  these  "  reprint  "  publishers.  There  have  been 
more  important  failures  since,  and  the  "  bargain  " 
departments  in  the  dry-goods  shops  are  still  working 
off  the  remainders  of  the  bankrupt  stock,  much  of  it, 
like  many  other  "  bargains,"  dear  at  any  price. 

Except  in  this  class  of  cheap  fiction,  there  has 
been  with  copyrighted  foreign  books  a  steady  ten- 
dency to  lower  prices.  Before,  it  was  the  frequent 
practice  of  the  publisher  of  a  higher-grade  book 
(knowing  that  if  it  secured  for  itself  a  preliminary 


RESULTS   OF   THE   COPYRIGHT   LAW.  1 69 

success,  he  would  have  to  contend  later  with  pirati- 
cal competition)  to  secure  for  his  first  edition  the 
highest  price  that  the  market  would  bear.  In  the 
cases  in  which  there  was  no  second  edition,  this  high 
price  remained  the  only  price  to  the  readers  who  had 
to  have  the  book.  Now,  the  American  edition  of 
such  a  work  is  planned  at  once  for  the  widest  possi- 
ble market,  and  to  this  end  is  issued  at  a  popular 
price.  The  publisher  knows  that,  when  he  can  con- 
trol the  market,  a  wide  sale  at  the  low  price  demanded 
by  the  requirements  of  American  readers  secures  in 
the  end  the  most  remunerative  results.  The  prices, 
therefore,  of  literature  other  than  fiction — that  is,  of 
history,  biography,  science,  and  the  like — are  lower 
than  before.  On  this  point  I  will  cite  the  testimony 
of  Mr.  Spofford,  the  Librarian  of  Congress,  who  is  in 
a  position  to  know  : 

"  The  first  great  benefit  of  international  copyright  has  been  the 
gradual  decline  in  the  price  of  standard  foreign  works.  Before  the 
passage  of  the  act, — when,  for  instance,  an  English  publishing  house 
could  not  be  protected  in  its  editions  of  important  medical  and  scien- 
tific works  by  foreign  authors, — the  only  course  to  pursue  was  to 
charge  a  very  high  selling-price  for  a  limited  market,  which  rarely 
extended  beyond  Great  Britain.  Works  of  this  class  are  now,  how- 
ever, planned  to  secure  a  market  on  both  sides  of  the  Atlantic,  and 
the  result  is  much  larger  sales  at  popular  prices.  This  brings  a  sub- 
stantial advantage  to  the  more  scholarly  readers  of  the  community, 
who  are  able  to  secure,  at  lower  prices  than  heretofore,  editions  of 
scientific  works  which  have  been  carefully  printed  to  meet  their  own 
special  requirements.  The  dread  that  the  bill  would  create  publish- 
ing monopolies  proves  to  have  been  entirely  unfounded.  One  of  the 
most  noteworthy  results  of  the  law,  from  the  American  standpoint, 
has  been  the  cleansing  effect  upon  the  character  of  reprinted  fiction. 
By  far  the  larger  proportion  of  the  cheap  novels  of  an  undesirable 
character  with  which  the  market  has  been  flooded  during  the  past 


170  THE   QUESTION   OF   COPYRIGHT. 

fifteen  years  were  the  work  of  English  or  French  authors.  A  group 
of  publishing  houses  in  the  United  States,  which  made  a  specialty  of 
cheap  books,  vied  with  each  other  in  the  business  of  appropriating 
English  and  Continental  trash,  and  printed  this  under  villainous 
covers,  in  type  ugly  enough  to  risk  a  serious  increase  of  ophthalmia 
among  American  readers." 

There  is  a  noteworthy  increase  in  the  number  of 
international  undertakings,  works,  or  series,  the  con- 
tributions to  which  are  written  by  the  best  authori- 
ties on  special  subjects,  the  writers  for  which  are 
secured  from  this  country,  from  England,  or  from 
the  Continent,  wherever  the  best  men  happen 
to  be.  Such  international  publications  existed  be- 
fore the  copyright,  but  were  then  carried  on  at  a 
special  disadvantage.  Now,  the  editorial  work  can 
be  done  with  proper  deliberation,  and  the  publishers 
can  afford  to  pay  the  best  writers  for  the  best  work. 
The  cost  of  the  authorship  (and  of  the  illustrations, 
if  any  are  required)  being  divided  between  two  or 
more  markets,  publishers  are  able  to  give  to  the 
readers,  at  a  moderate  price,  the  best  material  in  a 
satisfactory  and  attractive  form.  Publications  of 
this  class  often  require  several  years  for  their  prepa- 
ration, and  two  years  is  not  a  long  enough  period  to 
enable  this  phase  of  the  results  of  copyright  to  be 
fairly  tested.  With  an  adequate  protection  of  prop- 
erty  in  literary  productions,  irrespective  of  political 
boundaries,  we  can  confidently  expect  in  the  near 
future  a  large  development  of  such  international 
undertakings, — a  development  which  will  prove  of 
direct  service  to  both  writers  and  readers  and  to  the 
work  of  higher  education. 


RESULTS   OF   THE   COPYRIGHT   LAW.  171 

While  the  artists  of  the  Continent,  whose  creations, 
reproduced  in  the  form  of  engravings  or  photogra- 
vures, are  available  for  sale  in  the  United  States,  are 
deriving  from  the  law,  if  not  as  large  returns  as  were 
at  first  hoped  for,  yet  substantial  advantage,  the 
Continental  authors  have  been  very  seriously  disap- 
pointed, and  seem  to  have  legitimate  grounds  for 
their  disappointment  and  for  their  criticism.  These 
authors  complain  that  they  have  been  invited  to  a 
"  barmecide  feast,"  and  that  they  have  "  thanked  us 
for  nothing."  The  condition  that  the  work,  to  be 
protected  by  American  copyright,  must  be  manufac- 
tured in  this  country  and  that  the  American  edition 
must  be  published  not  later  than  the  edition  in  the 
country  of  origin,  causes  inconvenience  and  diffi- 
culty to  the  authors  of  England ;  but  it  is  prac- 
tically prohibitory  in  the  cases  of  works  originally 
issued  in  a  foreign  language.  It  is  almost  impos- 
sible for  a  French  or  German  author  to  arrange 
to  issue  his  book  in  this  country  (either  in  the 
original  or  in  a  translation)  simultaneously  with 
its  publication  abroad.  The  resetting  in  the  origi- 
nal language,  for  such  limited  sales  as  could  be 
looked  for  here,  would  be  unduly  expensive,  while 
time  is  required  for  the  preparation  of  a  satisfac- 
tory translation.  As  a  result  of  this  restriction, 
but  few  French  or  German  authors  have  been  able 
to  secure  the  protection  of  the  act,  and  the  French 
Society  of  Authors,  to  whose  initiative  and  efforts 
were  chiefly  due  the  international  copyright  system 
now  in  force  throughout  Europe,  has  found  occasion 
to  criticise  very  sharply  the  procedure  of  the  Ameri- 


172  THE   QUESTION   OF   COPYRIGHT. 

cans  in  granting  literary  copyright  in  form  while 
withholding  it  in  fact. 

While  the  Copyright  Act  is  defective  as  well  in  its 
bearing  upon  the  interests  of  Continental  authors  as 
in  sundry  other  respects,  and  ought  in  my  judgment 
certainly  to  be  amended,  I  am  of  opinion  that  it 
would  be  unwise  at  this  time  to  make  any  effort  to 
secure  such  amendments.  The  public  opinion  which 
creates  and  directs  legislative  opinion  is  not  yet  suf- 
ficiently assured  in  its  recognition  of  the  rights  of 
literary  producers,  to  be  trusted  to  take  an  active  or 
intelligent  interest  in  securing  more  satisfactory  pro- 
tection for  such  producers.  There  would  be  grave 
risk  that,  if  the  copyright  question  were  reopened  in 
the  present  Congress,  we  might,  in  place  of  develop- 
ing or  improving  the  copyright  system,  take  a  step 
backward,  and  lose  the  partial  measure  of  interna- 
tional copyright  that  it  has  taken  the  efforts  of  half 
a  century  to  secure. 

The  provision  establishing  international  copyright 
is  only  a  clause  in  the  general  Copyright  Act,  and 
the  whole  act  ought  before  many  years  to  be  care- 
fully revised.  Work  of  this  kind,  instead  of  being 
referred  at  the  outset  to  a  Congressional  committee 
whose  interest  in  the  subject  or  ability  to  consider  it 
intelligently  could  not  with  certainty  be  depended 
upon,  ought  to  be  entrusted  to  a  Commission  of 
experts  selected  for  the  purpose,  which  should  be 
instructed  to  take  evidence  and  to  submit  a  report 
to  serve  as  a  basis  for  legislation.  This  is  the  system 
that  has  been  pursued  with  the  copyright  legislation 
of  England,  France,  Germany,  and  Italy,  and  is  what 


RESULTS   OF  THE   COPYRIGHT   LAW.  1 73 

might  be  termed  the  scientific  method  of  arriving  at 
satisfactory  legislation  on  subjects  of  intricacy  or 
complexity. 

Among  the  recommendations  that  would  be  placed 
before  such  a  Commission  would  be  one  for  the 
lengthening  of  the  term  of  copyright.  The  present 
term  (twenty-eight  years,  with  a  right  of  renewal  to 
an  author,  to  his  widow,  or  to  his  children,  for.  four- 
teen years)  is  shorter  than  that  of  any  civilized 
country.  The  British  term  is  forty-two  years,  or  the 
life  of  the  author  and  seven  years,  whichever  term  be 
the  longer ;  the  German,  the  life  of  the  author  and 
thirty  years  ;  the  French,  the  life  of  the  author  and 
fifty  years.  The  amended  British  law  now  pending 
in  Parliament  (the  Monkswell  bill)  accepts  the  Ger- 
man term,  the  life  of  the  author  and  thirty  years. 
Under  the  American  law,  an  author  may  see  his 
earlier  productions  pirated  during  his  own  lifetime, 
as  happened  to  Longfellow,  and,  more  recently,  to 
Donald  G.  Mitchell. 

By  the  time  an  amended  copyright  bill  is  in  shape 
for  consideration,  it  is  probable  that  the  typograph- 
ical unions  will  have  convinced  themselves  that  they 
do  not  require  the  aid  of  the  "  manufacturing  "  pro- 
vision forbidding  the  importation  of  foreign  type  or 
plates  for  copyrighted  books.  Such  a  provision  has 
no  logical  connection  with  copyright,  but  belongs 
rather  with  the  prohibitory  division  of  a  tariff  act, 
such  as  that  which  now  forbids,  as  equally  dangerous 
and  undesirable,  the  importation  of  obscene  litera- 
ture and  of  ships.  When,  with  a  developed  public 
opinion  and  a  more  robust  condition  of  mind  on  the 


174  THE  QUESTION  OF  COPYRIGHT. 

part  of  the  typographers,  the  conclusion  has  been 
reached  that  the  manufacturing  condition  can  be 
spared  from  the  Copyright  Act,  the  United  States 
will  be  free  to  unite  with  the  other  civilized  nations 
of  the  world  in  accepting  the  world-wide  copyright 
of  the  Berne  Convention. 

G.  H.  P. 


XII. 

CASES  AND  DECISIONS  SINCE  THE  ACT 
OF  1891,  THE  ISSUES  OF  WHICH  HAVE 
INVOLVED  QUESTIONS  OF  INTERNA- 
TIONAL COPYRIGHT.1 

Fraudulent  Reproduction  of  Works  of  Art. 

U.  S.  Circuit  Court,  New  York  City.     Townsend,  Judge. 
Fishel,  Adler  &°  Schwarz  vs.  Lueckel,  Unger  e^  Co. 

In  re  reproduction,  by  photogravure,  of  certain  works  of  art,  which 
had  been  duly  copyrighted  in  Washington.  The  reproductions  omitted 
the  tint,  title,  and  platemark.  They  were  stamped  "made  in  Ger- 
many," and  were  exported  for  sale  in  Europe. 

Judgment  for  plaintiffs  for  $750,  amount  of  alleged  profits.  Pho- 
tographic negatives  to  be  delivered  to  plaintiffs.  Perpetual  injunc- 
tion granted.     (Dec,  1892). 

Copyright  Requirements  for  a  Work  of  Art  Originating 
Abroad. 

U.  S.  Circuit  Court,  of  Mass.  in  Boston.     Putnam,  Judge. 
Werckmeister  {on  behalf  of  the  Photographische  Geselhchaft  of  Berlin) 
vs.  Pierce  and  Bushnell  of  New  Bedford. 
The  plaintiffs  were  the  owners  of  the  exclusive  rights  of  reproduc- 
tion of  the  design  of  a  painting  by  G.  Naujok,  a  resident  of  Ger- 

1  For  information  concerning  the  cases  here  cited,  I  desire  to  ex- 
press my  acknowledgments  to  the  following  counsel,  who  are  regarded 
as  authorities  in  questions  of  copyright  law  :  Samuel  J.  Elder  of 
Boston,  and  Rowland  Cox,  D.  G.  Thompson,  Roger  Foster,  A.  T. 
Gurlitz,  Everett  P.  Wheeler,  and  Arthur  von  Briesen,  of  New  York. 


176  THE   QUESTION   OF  COPYRIGHT. 

many,  entitled  "  Die  Heilige  Cecilia."  They  entered  for  copyright  in 
Washington  the  design  of  this  painting,  filing  with  the  entry  a  repro- 
duction in  photograph.  The  defendants  were  offering  for  sale  unau- 
thorized reproductions  (taken  by  a  photographic  process)  of  the  same 
work.  Judgment  in  favor  of  plaintiffs.  Injunction  granted  August, 
1893.     In  September,  1894,  this  decision  was,  on  appeal,  affirmed. 

January,  1S96,  the  above  decision  was  reversed  by  the  U.  S.  Circuit 
Court  of  Appeals  for  the  first  circuit  of  Mass.,  opinion  of  Judges 
Colt  and  Nelson,  Judge  Webb  dissenting.  The  injunction  against 
original  defendants  was  under  this  decision  dissolved,  the  copyright 
claimed  by  them  being  adjudged  invalid. 

The  conclusion  presented  in  the  dissenting  opinion  of  Judge  Webb 
is  worded  as  follows:  "  I  cannot  concur  with  either  the  reasoning 
or  the  conclusions  of  the  majority  of  the  Court,  but  am  of  the  opinion 
that  the  judgment  of  the  Circuit  Court  (Judge  Putnam's)  should  be 
affirmed." 

The  case  turned,  1st,  upon  the  requirement  of  the  Act  for  the 
inscription  upon  the  original  design  (in  this  case  an  oil  painting) 
of  the  notice  required  by  law,  and  2d,  upon  the  question  whether  the 
plaintiff  ought  not  to  have  based  his  claim  for  copyright  upon  the 
photograph  produced  by  him,  which  he  could  properly  have  entered 
for  copyright,  and  have  limited  his  claim  to  the  control  of  such  pho- 
tographs, in  place  of  setting  up  a  claim  to  control  the  design  of  the 
painting,  concerning  which  the  copyright  requirements  had  not  been 
fulfilled  :  and  3d.  Whether  the  public  exhibition  of  the  painting 
constituted  a  publication  in  the  sense  of  the  law. 

The  court  held  that  the  failure  to  place  on  the  painting  the  notice 
of  copyright  constituted  a  fatal  defect  to  the  American  copyright, 
even  though  said  painting  had  not  been  brought  to  the  country,  the 
painting  itself  being  the  original  design  for  which  copyright  was 
claimed  ;  and  held,  further,  that  the  public  exhibition  of  the  painting 
constituted  a  publication. 

The  affirmative  points  decided  under  the  several  decisions  above 
presented  are  stated  by  the  plaintiff  to  be  as  follows  : 

1.  That  the  right  to  reproduce  photographic  copies  from  paintings 
painted  abroad  by  foreigners  could  be  assigned  to  the  "  Photograph- 
ische  Gesellschaft,"  of  Berlin, 

2.  That  it  was  proper  and  legal  for  the  photographic  reproductions 
of  such  paintings  to  be  marked  "Copyright,  1892,  by  Photographische 
Gesellschaft," 


CASES   AND   DECISIONS.  1 77 

3.  That  the  "  Photographische  Gesellschaft,"  as  the  owner  of  the 
copyright  upon  such  painting,  is  protected  against  all  unauthorized 
reproductions  of  the  same  in  any  form, 

4.  That  it  was  not  necessary  for  the  "  Photographische  Gesell- 
schaft "  photographs  to  be  printed  from  negatives  or  transfers  made 
within  the  limits  of  the  United  States. 

The  case  will  be  appealed  to  the  Supreme  Court.  If  this  highest 
authority  should  confirm  the  decision  arrived  at  by  the  majority  of 
the  Massachusetts  Circuit  Court,  it  will  put  very  serious  difficulties 
in  the  way  of  securing  American  copyright  for  works  of  art  originat- 
ing abroad, — and  will  give  ground  for  fresh  attacks  upon  the  Act 
of  1891,  on  the  part  of  Germany,  France,  and  Italy. 


The  Britannica  Cases. 

The  Britannica  Cases,  i8jg-i8gj. 

The  first  of  the  series  of  cases  which  had  to  do  with  the  unau- 
thorized issues  of  the  ninth  edition  of  the  "  Encyclopedia  Britannica  " 
was  initiated  twelve  years  before  the  enactment  of  the  International 
Copyright  Act,  and  the  latest  of  the  series,  while  decided  in  1893, 
was  not  based  in  any  way  upon  the  provisions  of  that  Act.  These 
cases  involved,  however,  certain  issues  that  could  be  described  as 
international,  and  as  the  final  decision  was  arrived  at  within  the  term 
specified  for  this  chapter,  I  think  it  in  order  to  present  a  summary  of 
the  series. 

The  first  case,  that  of  Black  et  al.  vs.  Stoddart,  had  been  initiated 
in  1879,  in  the  U.  S.  Circuit  Court  for  the  Eastern  Dist.  of  Penna. 
The  plaintiffs,  A.  and  C.  Black,  of  Edinburgh,  were  the  publishers 
of  the  "  Encyclopedia  Britannica,"  the  ninth  edition  of  which  was 
at  that  time  in  course  of  publication. 

This  edition  was  imported  into  the  United  States  by  Little,  Brown 
&  Co. ,  of  Boston,  who  acted  as  agents  for  the  publishers.  The  de- 
fendants, J.  M.  Stoddart  &  Co.,  of  Philadelphia,  had  undertaken 
the  production  of  an  unauthorized  reprint,  and  of  this  reprint 
they  had  issued  the  first  seven  or  eight  volumes.  There  was  no 
ground  under  which  the  owners  of  the  work  or  their  American  agents 


178  THE   QUESTION   OF   COPYRIGHT. 

could  claim  American  copyright  in  the  material  contained  in  these 
earlier  volumes.  Before  the  publication  of  the  set  had  progressed 
beyond  the  seventh  volume,  the  Blacks  arranged  with  Charles  Scrib- 
ner's  Sons,  of  New  York,  to  publish  a  cheaper  edition  of  the  "  Encyclo- 
pedia "  from  duplicate  sets  of  plates  which  were  sent  from  Edinburgh 
for  the  purpose.  It  was  the  intention,  in  planning  this  popular  edi- 
tion, to  render  unprofitable  the  competition  of  such  unauthorized 
reprints  as  that  of  the  Stoddarts,  and  also  to  secure  a  wider  sale  for 
the  work  than  could  be  looked  for  for  the  higher-priced  imported  vol- 
umes. With  the  view  to  making  certain  divisions  of  the  material 
more  valuable  for  the  requirements  of  American  readers,  articles  from 
American  contributors  were  secured  for  the  tenth  volume  and  for 
certain  succeeding  volumes.  For  the  purpose  of  testing  the  practica- 
bility of  protecting  the  volume  as  an  entirety,  that  is  to  say,  of  pre- 
venting a  literal  reprint,  two  or  three  of  the  American  contributions 
to  the  tenth  volume  were  issued  in  pamphlet  form  as  separate  publi- 
cations, which  were  duly  entered  for  copyright. 

Plaintiffs  sought  an  injunction  to  restrain  the  defendants  from 
including  these  copyrighted  articles  in  their  reprint  of  the  tenth 
volume.  Judge  Butler,  in  denying  the  injunction,  rather  went  out 
of  his  way  (as  if  for  the  purpose  of  foreshadowing  the  opinion  of  the 
court  on  the  main  issue,  and  thus  of  discouraging  the  further  prose- 
cution of  the  suit)  to  characterize  the  proceedings  as  an  attempt  on 
the  part  of  aliens  to  interfere  with  a  legitimate  American  industry. 
The  plaintiffs  were  discouraged  at  this  attitude  of  the  court  and  were 
unwilling  to  authorize  their  American  representatives  to  continue 
the  suit.  The  Stoddart  edition  of  the ' '  Encyclopaedia  "  was  completed, 
but  it  was  itself  interfered  with  by  the  competition  of  one  or  two 
still  cheaper  reprints,  for  one  of  which  the  plates  were  reproduced 
by  the  new  photographic  process.  The  Stoddart  undertaking  proved 
in  the  end  unremunerative,  and  the  publishers  failed. 

In  1889,  two  suits  were  brought  in  the  U.  S.  Circuit  Court  for  the 
Southern  District  of  New  York,  by  Black  et  a/,  against  the  Henry 
G.  Allen  Co. 

One  of  these  suits  was  brought  upon  an  article  by  Francis  A.  Walker, 
entitled"  United  States,  Part  III,  Political  Geography  and  Statistics," 
which  had  been  duly  copyrighted  ;  and  the  other  upon  an  article 
by  Alexander  Johnston,  entitled  "  United  States,  Part  I,  History 
and  Constitution,"  which  also  had  been  duly  copyrighted  and  had 
been  published  in  separate  form.     These  articles  were  later  included 


CASES   AND   DECISIONS.  1/9 

in  the  twenty-third  volume  cf  the  "Cyclopedia."  The  defendants 
interposed  demurrers  to  these  bills  of  complaint.  The  demurrers 
came  on  for  argument  before  Judge  Shipman,  who  decided  that  the 
copyright  of  these  two  articles  was  valid  and  that  the  defendant*' 
demurrers  should  be  overruled  and  the  defendants  compelled  to 
answer  the  bills.  On  the  issues  raised  by  such  demurrers,  the  Judge 
says  :  "  There  is  no  vital  difference  in  regard  to  the  infringement  of 
an  author's  copyright  whether  it  be  printed  in  a  separate  volume  or 
in  connection  with  authorized  material.  If  the  author  has  a  valid 
copyright,  it  is  valid  against  any  unpermitted  reprint  of  his  books  ; 
and  the  fact  that  his  book  is  bound  up  in  a  volume  with  fifty  other 
books,  each  of  which  is  open  to  the  public,  is  immaterial." 

Judge  Shipman  further  held  that  while  a  non-resident  foreigner 
was  not  (in  18S9)  within  our  copyright  law,  he  could  take  and  hold 
by  assignment  a  copyright  granted  to  one  of  our  citizens. 

2.  That  a  copyright  can  be  assigned  not  only  as  a  whole,  but  in 
sub-divisions,  and  that  the  copyright  may  become  the  individual 
property  of  joint  owners. 

3.  That  there  is  no  vital  difference  in  regard  to  the  infringement 
of  an  author's  copyright  whether  it  be  printed  in  a  separate  volume 
or  in  connection  with  material  which  belongs  to  the  public  domain. 

4.  That  the  fact  that  these  American  articles  had  been  prepared 
for  the  volume  for  the  purpose  of  securing  for  the  work  some  measure 
of  protection  against  appropriation,  could  not  constitute  any  ground 
for  refusing  to  the  plaintiffs  the  benefit  of  such  remedies  as  they  are 
entitled  to  under  the  law. 

Another  suit  by  Black  et  al.  vs.  Isaac  K.  Funk  et  al.  was  brought 
in  June,  1890,  in  the  U.  S.  Circuit  Court  for  the  Southern  District  of 
New  York,  upon  the  Walker  article. 

This  suit,  and  the  two  suits  against  the  Henry  G.  Allen  Co.,  were 
argued  together  at  final  hearing,  upon  full  proofs,  before  Judge 
Townsend,  who  rendered  his  decision  in  April,  1893,  in  favor  of  the 
plaintiffs. 

The  cases  turned  upon  the  appropriation  on  the  part  of  the  defend- 
ants, for  use  in  their  unauthorized  edition  of  the  "Encyclopaedia," 
of  certain  material  of  which  Walker  and  Johnston  were  the  authors. 
This  material  had  been  duly  copyrighted,  and  the  Johnston  article 
had  been  issued  in  book  form,  and  had,  later,  been  included  by 
Black,  under  assignment  from  the  authors,  in  the  twenty-third  vol- 
ume  of  the  ninth    edition  of    the    "  Encyclopaedia."     This  volume 


l8o  THE   QUESTION   OF   COPYRIGHT. 

contained  other  copyrighted  American  material  which  had  in  like 
manner  been  appropriated  by  the  defendants,  but  these  two  articles 
were  selected  as  a  convenient  test  of  the  question  of  the  practicability 
of  protecting  the  volume  through  the  including  of  American  articles. 
The  main  issues  in  the  cases  were  as  follows  : 

The  right  of  the  authors  to  assign  their  copyright  to  an  alien. 

The  precise  fulfilment  of  the  provisions  of  the  law  in  regard  to  the 
depositing,  within  ten  days  of  publication,  two  copies  of  the  volume 
containing  the  articles. 

The  difference  between  the  titles  of  the  articles  as  originally  en- 
tered for  copyright,  and  the  titles  as  printed  in  the  "  Encyclopaedia." 

The  legality  of  a  copyright  remaining  vested  in  one  party  while 
another  party  holds  under  contract  or  assignment  a  beneficial  interest 
in  it. 

The  validity  of  the  copyright  of  a  single  article,  bound  up  in  a 
volume  the  bulk  of  which  is  publici  juris,  against  any  authorized  re- 
print of  the  entire  work. 

These  several  points  were  decided  by  the  court  in  favor  of  the 
plaintiffs,  and  an  injunction  was  granted.  The  decision  followed 
closely  upon  the  lines  of  the  previous  decision,  rendered  by  Judge 
Shipman  (in  1890),  overruling  the  demurrers  of  the  defendants  in  the 
Allen  cases. 

In  1890,  suit  was  brought  by  Black  el  al.  vs.  Samuel  W.  Ehrich 
et  al.  in  the  U.  S.  Circuit  Court  for  the  southern  district  of  N.  Y. 
Defendants,  constituting  the  firm  of  Ehrich  Brothers,  of  New 
York,  were,  in  conjunction  with  R.  S.  Peale  and  Co.,  of  Chicago, 
circulating  a  reprint  of  the  "  Britannica,"  which  had  been  pre- 
pared from  plates  produced  in  facsimile  by  a  photographic  process. 
The  Peale  reproduction  omitted  the  copyrighted  American  articles. 
The  contention  of  the  plaintiffs  rested  therefore  not  on  an  infringe- 
ment of  copyright,  but  on  an  infringement  of  trade-mark.  The  de- 
fendants called  their  work  the  "Encyclopaedia  Britannica,"  "an  exact 
reproduction  of  the  Edinburgh  edition  of  1890."  Their  book  was 
advertised  at  $1.50  per  volume,  the  price  of  the  authorized  work  being 
$5.00  per  volume.  The  court  held  that  the  plaintiffs'  contention  was 
not  well  founded  and  an  injunction  was  accordingly  denied. 

I  have  omitted  from  the  above  summary  a  number  of  the  points 
and  decided  which  were  more  or  less  technical  or  which,  on  other 
grounds,  were  less  important.  The  decisions  on  the  main  issues  and 
on  the  essential  points,  and  the  attitude  and  utterances  of  the  judges 


CASES  AND   DECISIONS.  l8l 

before  whom  these  later  cases  were  brought,  give  ground  for  the 
conclusion  that  during  the  fourteen  years  between  1879  and  1S93, 
there  had  been  a  development  of  public  opinion  and  of  the  opinion 
of  the  courts  in  the  direction  of  a  more  assured  and  more  extended 
recognition  of  the  property  rights  of  literary  producers  and  their 
assigns.  The  passage  of  the  Act  of  1891  and  the  discussions  in  re- 
gard to  copyright  which  preceded  that  Act  are  undoubtedly  to  be 
credited  with  a  large  share  in  this  education  of  the  opinion  of  the 
public  and  of  the  courts. 


The  Protection  of  Lectures. 

U.  S.  Circuit  Court,  Phila.     Dallas,  Judge. 
Drummond,  Henry,  vs.  Allemus  &  Co. 

In  re  Lectures  of  plaintiff  entitled  "  The  Ascent  of  Man."  Lec- 
tures delivered  in  Boston  ;  announcement  made  in  due  course  that 
lecturer  "  reserved  all  publication  rights."  Lecturer  was  under  con- 
tract with  his  authorized  publishers,  Jas.  Pott  &  Son,  of  New  York, 
to  issue  the  material  (when  revised)  in  book  form.  Defendant  pub- 
lished an  unauthorized  edition  of  a  book  under  the  same  title,  made 
up  from  incomplete  and  fragmentary  newspaper  reports  of  the  lec- 
tures. Plaintiff,  a  British  subject,  temporarily  resident  in  the 
United  States,  claimed  protection  under  the  provisions  of  copyright 
protecting  lecturers,  and  also  under  the  common  law  protecting  un- 
published material. 

Injunction  granted  (January,  1894)  : — The  Court  took  the  ground 
that  "  the  subject  of  copyright  "  was  "  not  directly  involved."  The 
volume  printed  by  the  defendant  did  not  present  the  lectures  cor- 
rectly, but  with  omissions  and  additions  which  materially  altered  their 
purport.  This  constituted  a  personal  wrong  to  the  author,  and  inci- 
dentally a  fraud  upon  the  purchasers.  If  the  defendant  had  confined 
his  action  to  reprinting  only  that  portion  of  the  lectures  which  had 
appeared  in  the  British  Weekly,  and  his  volume  had  correctly  de- 
scribed its  contents,  the  plaintiff  would  have  been  without  remedy. 
The  complainant's  right  to  restrain  the  present  publication  has,  how- 
ever been  fully  made  out. 


1 82  THE   QUESTION   OF   COPYRIGHT. 

Does  the  Requirement   of  the  U.  S.  Law  Concerning  the 
Printing  of  the  Notice  of  Copyright  Apply  to  the  For- 
eign as  Well  as  to  the  American  Editions  ? 

U.  S.  Circuit  Court  of  New  Jersey. 

Haggard  {Rider),  of  London,  and  Longmans,  Green  &*  Co.,  of  Lon- 
don, &■  New  York,  vs.  The  Waverly  Publishing  Company. 

In  regard  to  Haggard's  "  Nada  the  Lily."  Plaintiffs  were  the 
author  and  the  authorized  publishers  of  said  book,  which  had  been 
duly  copyrighted  under  the  Act  of  1891.  The  action  was  brought 
(in  April,  1S94),  to  restrain  the  publication  of  an  unauthorized  edition 
issued  by  the  defendants.  The  defence  was  based  in  substance  on 
two  contentions : 

1st.  That  the  Act  of  189 1  was  unconstitutional,  because  it  gave  to 
the  President  a  discretionary  or  judicial  power,  not  within  the  consti- 
tutional functions  of  an  Executive,  to  determine  the  status  of  copy- 
right law  in  foreign  states,  and  to  concede  (or  to  withhold)  copyright 
relations  with  such  states. 

2nd.  That  the  U.  S.  Act  of  1870  (which  in  this  respect  was  not 
modified  by  that  of  1891),  required  the  printing  of  the  United  States 
copyright  notice  in  all  editions  and  in  all  copies  issued  of  a  work 
claiming  U.  S.  copyright : — that  the  plaintiffs  had  not  ventured  to 
contend  that  such  notice  had  been  printed  in  all  the  editions  issued  of 
"  Nada  the  Lily,"  and  had  submitted  with  their  complaint  and  as  evi- 
dence of  this  copyright  entry,  only  copies  of  certain  editions  printed 
in  the  United  States :  that,  as  a  matter  of  fact,  editions  had  been 
printed  in  Melbourne  and  elsewhere  which  did  not  contain  this  entry 
of  U.  S.  copyright,  and  that  a  copy  of  one  of  these  editions  had  been 
utilized  for  the  printing  of  the  American  edition  issued  by  the  de- 
fendant. 

The  Court  sustained  on  this  point,  in  substance,  the  contention  of 
the  plaintiffs,  overruling  the  demurrer  of  the  defendants.  Leave 
was  given  to  the  plaintiffs  to  amend  their  bill  of  complaint  so  as  to 
plead  that  while  in  the  foreign  editions  of  "  Nada  "  the  United  States 
copyright  notice  had  been  omitted,  the  fact  of  such  omission,  in  edi- 
tions issued  outside  of  the  territory  of  the  United  States,  and  by 
parties  not  amenable  to  the  authority  of  the  United  States,  could  not 


CASES   AND   DECISIONS.  183 

invalidate  the  protection  of  American  copyright  for  editions  issued 
within  the  United  States,  and  for  which  the  requirement  of  the  law 
had  been  complied  with.  The  judge  admitted,  that  he  regarded  the 
question  as  "  a  close  one,"  which  could  be  decided  finally  only  upon 
a  full  hearing  of  the  case  on  its  merits.  The  preliminary  injunction 
was  denied,  for  the  purpose  apparently  of  securing  a  decision  on  the 
main  question  at  issue.  It  is  understood  that  the  case  will  be  carried 
to  the  Supreme  Court.  The  defendant's  contention  in  regard  to  the 
unconstitutionality  of  the  Act  will,  I  understand,  probably  be 
dropped.  The  issue  raised  in  regard  to  the  requirement  of  the  print- 
ing of  the  United  States  copyright  entry  in  all  the  editions  issued  of 
a  book  claiming  American  copyright,  is  evidently  one  of  far-reaching 
importance.  If  the  failure  to  secure  such  entry  in  all  editions, 
whether  authorized  or  unauthorized,  issued  in  countries  which  may 
not  even  be  in  copyright  relations  with  the  United  States,  is  to  in- 
validate American  copyright,  there  is  of  course  no  copyright  protec- 
tion under  the  Act  of  1891,  either  for  foreign  authors  or  for  Americans, 
and  there  has  in  fact  been  no  defensible  copyright  fur  American 
authors  under  the  Act  of  1S70. 

The  decision  of  the  Supreme  Court  in  the  "  Nada"  case  will  there- 
fore be  awaited  with  interest. 


The  Control  of  a  Copyrighted  Title. 

U.  S.  Circuit  Court. 
Harper  vs.  Ranous. 

67  Fed.  Rep.  904. 

In  re  title  of  "  Trilby." 

Plaintiffs  are  the  owners,  under  assignment  from  the  author, 
Du  Maurier,  of  the  copyright,  for  the  United  States,  of  the  book 
"Trilby."  Defendants  utilize  this  title  for  a  dramatic  perform- 
ance which  does  not  present  scenes  from  the  story  nor  borrow  its 
material.  Plaintiffs  attempt  to  prevent  this  use  of  their  title.  The 
Court  held  that  the  copyright  protects  the  name  only  in  conjunction 
with  the  book,  and  not  the  name  alone,  and  refused  to  enjoin  the 
performance.     (May,  1894.) 


1 84  THE  QUESTION  OF  COPYRIGHT. 

Musical  Compositions  and  the  Manufacturing  Requirement. 

U.  S.  Circuit  Court,  Dist.  of  Mass.,  Boston.    Colt,  Judge. 

Littleton,  on  behalf  of  Novello,  Ewer  &=  Co.  of  London, 
vs.  The  Oliver  Ditson  Company  of  Boston. 

In  regard  to  the  music  composed  for  "  Lead  Kindly  Light,"  and 
to  certain  other  musical  compositions.  Music  printed  in  London 
and  published  simultaneously  in  London  and  New  York  ;  entered  for 
copyright  in  Washington.  Case  decided  in  June,  1894,  by  Judge  Colt, 
who  granted  an  injunction  in  favor  of  plaintiff.  The  chief  question 
at  issue  in  the  suit  was  whether  music  compositions  originating  in 
Europe,  must,  in  order  to  secure  copyright  in  the  United  States,  be 
printed  from  type  set  up  or  from  plates  engraved  in  the  States.  This 
involved  the  question  whether  the  definition  of  a  "  book"  within  the 
meaning  of  the  manufacturing  clause  included  a  musical  composition 
in  sheet  form.  Both  of  these  questions  were  decided  by  Judge  Colt  in 
the  negative. 

It  was  admitted  that  the  music  was  published  in  book  form,  and 
had  been  printed  from  lithographic  stones  not  produced  in  the  United 
States  ;  but  the  contention  was  upheld  that  musical  publications  were 
not  included  in  the  list  of  articles  specified  in  Sect.  3  of  the  Act 
("book,  photograph,  chromo,  or  lithograph")  required  to  be  manu- 
factured in  this  country. 

62  Fed.  Rep.  597,  Oct.,  1894. 

Affirmed  in  Court  of  Appeals,  April,  1895.     67  Fed.  Rep.  905. 


Copyright  of  a  Musical  Composition. — What  Constitutes 
Publication  ? 

Carte  vs.  Duff. 

25  Fed.  183. 

Carte,  an  alien,  purchased  from  Gilbert  &  Sullivan,  British  sub- 
jects, their  right  of  public  representation  in  the  United  States  of  the 
comic  opera  "  The  Mikado,  or  The  Town  of  Titipu,"  of  which  Gilbert 


CASES   AND   DECISIONS.  1 85 

was  the  author  of  the  literary  parts,  and  Sullivan  the  author  of  the 
musical  parts.  They  employed  one  Tracy,  a  citizen  of  the  United 
States,  to  come  to  London  and  prepare  a  piano-forte  arrangement 
from  the  original  orchestral  score,  with  a  view  to  copying  the  same 
in  the  United  States.  After  Tracy  made  the  piano  arrangement, 
proceedings  were  taken  to  copyright  it  as  a  new  and  original  compo- 
sition in  the  United  States  ;  and  Carte  purchased  of  Gilbert,  Sulli- 
van, and  Tracy  the  title  to  such  copyright.  After  the  recording  in 
the  Library  of  Congress  of  the  title  of  this  arrangement,  the  libretto 
and  vocal  score  of  the  opera  and  piano-forte  arrangement  of  Tracy 
were  published  and  sold  in  England,  with  the  consent  of  Gilbert  & 
Sullivan.  The  orchestral  score  was  never  published,  but  was  kept 
by  Gilbert  and  Sullivan  for  their  own  use  and  for  that  of  licencees 
to  perform  the  opera.  Duff  purchased  in  England  a  copy  of  the 
libretto,  vocal  score,  and  piano-forte  arrangement,  and  procured  a 
skilful  musician  to  make  an  independent  orchestration  from  the  vocal 
and  the  piano  score,  and  was  about  to  produce  the  opera  in  New 
York  City,  with  the  words  and  voice  parts  substantially  the  same  as 
those  of  the  original  and  with  scenery,  costumes,  and  stage  business 
in  imitation  of  the  original,  and  with  the  orchestration  which  he  had 
procured  to  be  made,  and  without  claiming  that  he  employed  the 
orchestration  of  the  original  opera.  Carte  sought  to  enjoin  the  public 
representations  proposed  by  Duff. 

Held,  that  the  publication  of  the  libretto  and  vocal  score  of  the 
opera  in  England  with  the  consent  of  the  authors  was  a  dedication  of 
their  playright,  or  of  the  entire  dramatic  property  in  the  opera  to  the 
public,  notwithstanding  their  retention  of  the  orchestral  score  in  the 
manuscript,  and  that  the  public  representation  in  the  United  States 
could,  therefore,   not  be  enjoined. 

Carte  vs.  Evans, 

27  Fed.  861. 

The  title  as  filed  was  :  "  Piano-forte  arrangement  of  the  comic 
opera,  "  The  Mikado,  or  the  Town  of  Titipu,"  by  W.  S.  Gilbert  and 
Sir  Arthur  Sullivan,  by  George  L.  Tracy." 

The  title  as  published  was  :  "  Vocal  Score  of  the  Mikado,  or  the 
Town  of  Titipu."  An  arrangement  for  the  piano-forte,  by  George 
L.  Tracy  (Boston,  U.  S.  A.)  of  the  above-named  opera  by  W.  S. 
Gilbert  and  Arthur  Sullivan. 

Held,  that  the  variance  did  not  prejudice  the  title. 


1 86  THE   QUESTION   OF   COPYRIGHT. 

Burden  of  Proof  concerning  American  Manufacture. 

U.    S.    Circuit    Court,    Eastern    Div.    Eastern    Judicial    District. 
Adams,  Judge. 

Osgood  vs.  A.  S.  Aloe  Instrument  Co. 

69  Fed.  Rep.  291. 

This  case  decided  merely  a  question  of  pleading,  viz.  :  that  the  fact 
that  the  copyright  is  invalid  because  the  books  were  not  printed  from 
plates  made  in  this  country  is  a  matter  of  affirmative  defence,  and 
should  be  set  up  and  proved  by  the  alleged  infringing  party.  Inci- 
dentally, the  case  decided  that  the  two  copies  of  the  copyrighted  work 
deposited  in  Washington  need  not  contain  the  copyright  notice,  but 
that  this  notice  must  contain  the  name  of  the  copyrighting  party  (June, 
1895).     - 


The   Control  of  a  Title  as  Trade    Mark    connected  with 
Copyrighted  Material. 

U.  S.  Circuit  Court,  Southern  District  of  New  York. 

Mac  Laren  Cases. 

Dodd,  Mead  &  Co.  of  New  York  have  instituted  suits  against  the 
publishers  and  the  distributors  of  unauthorized  editions  of  volumes 
of  sketches  by  the  author  John  Watson,  who  writes  under  the  name 
of  Ian  Mac  Laren.  These  suits  have  at  this  time  of  writing  (February, 
1896)  not  been  sufficiently  advanced  to  be  matters  of  record.  It  is 
understood,  however,  that  the  contention  of  the  plaintiffs  will  be  based 
on  copyright  and  also  on  trade-mark.  The  volumes  complained  of 
contain  certain  sketches,  which  were  collected,  arranged,  revised, 
and  completed  by  the  author  to  constitute  a  continuous  and  integral 
book,  and  for  this  copyright  is  claimed.  The  author  had,  moreover, 
selected  for  his  American  volumes  distinctive  titles,  ("Beside  the 
Bonnie  Brier  Bush"  "A  Doctor  of  the  Old  School")  and  he  also 
claims  protection  for  the  body  of  material  associated  with  these 
titles,  that  is,  for  the  volume  as  put  together  by  him  and  for  the  titles 
as  of  trade-marks  placed  upon  the  material. 

It  is  the  further  contention  of  the  plaintiffs  that  the  volumes  printed 


CASES  AND  DECISIONS.  1 87 

by  the  defendants  contain  incomplete  and  incorrect  material  which 
being  sold  under  the  titles  associated  by  the  public  with  the  authorized 
and  complete  book,  is  calculated  (and  intended)  to  deceive  or  mislead 
the  public. 

Later.  (March  1S96).  Since  the  above  paragraph  was  put  into 
type,  a  decree  has  been  secured  in  the  U.  S.  District  Court  for  the 
Southern  District  of  New  York  (Judge  Lacombe),  against  the  de- 
fendants in  one  of  the  above  suits,  sustaining  in  substance  the  con- 
tention of  the  complainants. 


XIII. 

ABSTRACT  OF  THE  COPYRIGHT  LAW  OF 
GREAT   BRITAIN. 

The  following  are  the  dates  and  titles  of  the  laws 
constituting  the  existing  copyright  law  of  Great 
Britain  : 

DOMESTIC   COPYRIGHT. 

8  Geo.  2.  c.  13.  An  Act  for  the  encouragement  of  the  arts  of  de- 
signing, engraving,  and  etching  historical  and  other  prints  by  vesting 
the  properties  thereof  in  the  inventors  and  engravers  during  the  time 
therein  mentioned. 

7  Geo.  3.  c.  38.  An  Act  to  amend  and  render  more  effectual  an 
Act  made  in  the  eighth  year  of  the  reign  of  King  George  the  Second 
for  encouragement  of  the  arts  of  designing,  engraving,  and  etching 
historical  and  other  prints  ;  and  for  vesting  in  and  securing  to  Jane 
Hogarth,  widow,  the  property  in  certain  prints. 

15  Geo.  3.  c.  53.  An  Act  for  enabling  the  two  universities  in  Eng- 
land, the  four  universities  in  Scotland,  and  the  several  colleges  of 
Eton,  Westminster,  and  Winchester,  to  hold  in  perpetuity  their  copy- 
right in  books  given  or  bequeathed  to  the  said  universities  and  col- 
leges for  the  advancement  of  useful  learning  and  other  purposes  of 
education  ;  and  for  amending  so  much  of  an  Act  of  the  eighth  year 
of  the  reign  of  Queen  Anne  as  relates  to  the  delivery  of  books  to  the 
warehouse  keeper  of  the  Stationers'  Company  for  the  use  of  the 
several  libraries  therein  mentioned. 

17  Geo.  3.  c.  57.  An  Act  for  more  effectually  securing  the  property 
of  prints  to  inventors  and  engravers  by  enabling  them  to  sue  for  and 
recover  penalties  in  certain  cases. 

54  Geo.  3.  c.  56.  An  Act  to  amend  and  render  more  effectual  an 
Act  of  His  present  Majesty  for  encouraging  the  art  of  making  new 


COPYRIGHT  LAW   OF  GREAT   BRITAIN.         189 

models  and  casts  of  busts  and  other  things  therein  mentioned,  and 
for  giving  further  encouragement  to  such  arts. 

3  Will.  4.  c.  15.  An  Act  to  amend  the  laws  relating  to  dramatic 
literary  property. 

5  &  6  Will.  4.  c.  65.  An  Act  for  preventing  the  publication  of 
lectures  without  consent. 

6  &  7  Will.  4.  c.  59.  An  Act  to  extend  the  protection  of  copyright 
in  prints  and  engravings  to  Ireland. 

5  &  6  Vict.  c.  45.   An  Act  to  amend  the  law  of  copyright. 

25  &  26  Vict.  c.  68.  An  Act  for  amending  the  law  relating  to 
copyright  in  works  of  the  fine  arts,  and  for  repressing  the  commis- 
sion of  fraud  in  the  production  and  sale  of  such  works. 

38  &  39  Vict.  c.  53,  in  part.  An  Act  to  give  effect  to  an  Act  of  the 
Parliament  of  the  Dominion  of  Canada  respecting  copyright.  Sec- 
tion 4  only  repealed. 

INTERNATIONAL    COPYRIGHT. 

7  &  8  Vict.  c.  12.  An  Act  to  amend  the  law  relating  to  interna- 
tional copyright. 

15  &  16  Vict.  c.  12,  in  part.  An  Act  to  enable  Her  Majesty  to 
carry  into  effect  a  convention  with  France  on  the  subject  of  copy- 
right ;  to  extend  and  explain  the  International  Copyright  Acts  ;  and 
to  explain  the  Acts  relating  to  copyright  in  engravings.  Repeal  not 
to  extend  to  section  14. 

38  Vict.  c.  12.  An  Act  to  amend  the  law  relating  to  international 
copyright. 


The  following  is  the  Digest  of  these  laws,  pre- 
pared by  Sir  James  Stephen,  Q.C.,  and  presented  in 
the  Report  of  the  Royal  Copyright  Commission, 
1878,  as  the  most  authoritative  statement  of  British 
copyright  law : 

Article  i. 
Copyright  in  Private  Documents. 

The  author  or  owner  of  any  literary  composition  or  work  of  art 
has  a  right,  so  long  as  it  remains  unpublished,  to  prevent  the  publi- 
cation of  any  copy  of  it  by  any  other  person. 


1 9°  THE   QUESTION   OF  COPYRIGHT. 

Article  2. 

Effects  of  Limited  Publication  of  Private  Documents. 

The  publication  of  any  such  thing  as  is  mentioned  in  the  last  arti- 
cle for  a  special  and  limited  purpose,  under  any  contract,  or  upon 
any  trust  express  or  implied,  does  not  authorize  the  person  to  whom 
such  thing  is  published  to  copy  or  reproduce  it,  except  to  the  extent 
and  for  the  purposes  for  which  it  has  been  lent  or  intrusted  to  him. 

Article  3. 

Letters. 

A  person  who  writes  and  sends  a  letter  to  another  retains  his  copy- 
right in  such  letter,  except  in  so  far  as  the  particular  circumstances 
of  the  case  may  give  a  right  to  publish  such  letter  to  the  person  ad- 
dressed, or  to  his  representatives,  but  the  property  in  the  material 
on  which  the  letter  is  written  passes  to  the  person  to  whom  it  is 
sent,  so  as  to  entitle  him  to  destroy  or  transfer  it. 

Article  4. 
No  other  Copyright  except  by  Statute. 

There  is  (probably)  no  copyright  after  publication  in  any  of  the 
things  mentioned  in  Article  1,  except  such  copyright  as  is  given  by 
the  express  words  of  the  statutes  hereinafter  referred  to. 

Publication  in  this  article  means  in  reference  to  books  (as  defined 
in  the  next  article)  publication  for  sale.  It  is  doubtful  whether  in 
relation  to  works  of  art  it  has  any  other  meaning.  There  is  (it  seems) 
no  copyright  in  dramatic  performances  except  by  statute. 

Article  5. 
Book  defined — Law  of  Copyright  in  Books. 

In  this  chapter  the  word  "book"  means  and  includes  every  vol- 
ume, part  or  division  of  a  volume,  pamphlet,  sheet  of  letter-press, 
sheet  of  music,  map,  chart,  or  plan,  separately  published. 

The  word  "  copyright "  means  the  sole  and  exclusive  liberty  of 
printing,  or  otherwise  multiplying  copies  of  any  subject  to  which 
the  word  is  applied. 

When  a  book  is  published  in  the  lifetime  of  its  author,  the  copy- 
right therein  is  the  personal  property  of  the  author  and  his  assigns 


COPYRIGHT   LAW   OF  GREAT   BRITAIN.         191 

from  the  date  of  such  publication,  for  whichever  may  be  the  longer 
of  the  two  following  terms,  that  is  to  say : 

(1)  A  term  of  42  years  from  publication. 

(2)  The  life  of   the  author,  and  a  term  of  7  years,  beginning  from 

his  death. 

If  the  publication  takes  place  after  the  author's  death,  the  propri- 
etor of  the  author's  manuscript  and  his  assigns  have  copyright  in  his 
book  for  a  term  of  42  years  from  its  first  publication. 

If  one  person  employs  and  pays  another  to  write  a  book  on  the 
terms  that  the  copyright  therein  shall  belong  to  the  employer,  the 
employer  has  the  same  copyright  therein  as  if  he  had  been  the  author. 

If  the  publisher  or  proprietor  of  any  encyclopedia,  review,  maga- 
zine, or  periodical  work,  or  work  published  in  parts  or  series,  em- 
ploys and  pays  persons  to  compose  any  volume,  part,  essay,  article, 
or  portion  thereof,  on  the  terms  that  the  copyright  therein  shall 
belong  to  such  publisher  or  proprietor,  such  publisher  or  proprietor 
has  upon  publication  the  same  rights  as  if  he  were  the  author  of  the 
whole  work  (with  the  following  exceptions) : 

1.  After  28  years  from  the  first  publication  of  any  essay,  article, 

or  portion  in  any  review,  magazine,  or  other  periodical  work 
of  a  like  nature  [not  being  an  encyclopaedia],  the  right  of  pub- 
lishing the  same  in  a  separate  form  reverts  to  the  author  for 
the  remainder  of  the  term  for  which  his  copyright  would  have 
endured  if  the  same  had  been  originally  published  by  him 
elsewhere. 

2.  During  the  said  term  of  28  years  the  publisher  or  proprietor 

may  not  publish  any  such  essay,  article,  or  portion,  separately 
or  singly,  without  the  consent  of  the  author  or  his  assigns. 

The  author  of  any  such  magazine  as  aforesaid  may,  by  contract 
with  any  such  publisher  or  proprietor,  reserve  the  right  of  publishing 
any  work,  his  composition,  in  a  separate  form,  and  if  he  does  so  he 
is  entitled  to  copyright  in  such  composition  when  so  published  for 
the  same  term  as  if  such  publication  were  the  first  publication,  but 
without  prejudice  to  the  right  of  the  publisher  or  proprietor  to  pub- 
lish the  same  as  part  of  such  periodical  work. 

In  order  to  provide  against  the  suppression  of  books  of  importance 
to  the  public,  the  Judicial  Committee  of  the  Privy  Council  are  em- 
powered, on  complaint  that  the  proprietor  of  the  copyright  in  any 
book  after  the  death  of  its  author  has  refused  to  republish  or  allow 


I92  THE   QUESTION   OF   COPYRIGHT. 

the  republication  of  the  same,  and  that  by  reason  of  such  refusal 
such  book  may  be  withheld  from  the  public,  to  grant  a  license  to 
such  complainant  to  publish  such  book  in  such  manner  and  subject 
to  such  conditions  as  they  think  fit,  and  the  complainant  may  publish 
such  book  accordingly. 

The  whole  of  this  article  is  subject  to  the  limitations  contained  in 
the  subsequent  articles  of  this  chapter. 

It  applies — ■ 

(a)  To  all  books  published  after  1st  July,  1842. 

(/>)  To  all  books  published  before  that  day  in  which  copyright  was 
then  subsisting,  unless  such  copyright  was  vested  in  any  pub- 
lisher or  other  person  who  acquired  it  for  any  consideration 
other  than  that  of  natural  love  or  affection,  in  which  case  such 
copyright  endures  for  the  term  then  provided  for  by  law,  unless 
the  author,  if  living  on  that  day,  or  if  he  were  then  dead  his 
personal  representative,  and  (in  either  case)  the  proprietor  of 
the  copyright,  registered  before  the  expiration  of  the  term  of 
copyright  to  which  they  were  then  entitled,  consent  to  accept 
the  benefits  of  the  Act  5  &  6  Vict.  c.  45  in  a  form  provided  in 
a  schedule  therein. 

Article  6. 

Who  may  obtain  Copyright  in  Books. 

In  order  that  copyright  in  a  published  book  may  be  obtained  under 
the  provisions  of  Article  5,  the  book  must  in  all  cases  be  published 
in  the  United  Kingdom.  The  author  or  other  person  seeking  to 
entitle  himself  to  copyright  may  be  either — 

(a)  A  natural  born  or  naturalized  subject  of  the  Queen,  in  which 
case  his  place  of  residence  at  the  time  of  the  publication  of 
the  book  is  immaterial ;  or 

(6)  A  person  who  at  the  time  of  the  publication  of  the  book  in 
which  copyright  is  to  be  obtained  owes  local  and  temporary 
allegiance  to  Her  Majesty  by  residing  at  that  time  in  some 
part  of  Her  Majesty's  dominions. 

It  is  probable,  but  not  certain,  that  an  alien  friend  who  publishes 
a  book  in  the  United  Kingdom  while  resident  out  of  Her  Majesty's 
dominions,  acquires  copyright  throughout  Her  Majesty's  dominions 
by  such  publication. 


COPYRIGHT   LAW   OF   GREAT   BRITAIN.         1 93 

Article  7. 
Previous  and  Contemporary  Publication  out  of  the  United  Kingdom. 

No  copyright  in  a  book  published  in  the  United  Kingdom  can  be 
obtained  under  Article  5,  if  the  book  has  been  previously  published 
by  the  author  in  any  foreign  country,  but  the  contemporaneous  pub- 
lication of  a  book  in  a  foreign  country  and  in  the  United  Kingdom 
does  not  prevent  the  author  from  obtaining  copyright  in  the  United 
Kingdom. 

It  is  uncertain  whether  an  author  obtains  copyright  by  publishing 
a  book  in  the  United  Kingdom,  after  a  previous  publication  thereof 
in  parts  of  Her  Majesty's  dominions  out  of  the  United  Kingdom. 

It  is  uncertain  whether  an  author  acquires  copyright  under  Article 
5  in  any  part  of  Her  Majesty's  dominions  out  of  the  United  Kingdom 
(apart  from  any  local  law  as  to  copyright  which  may  be  in  force  there) 
by  the  publication  of  a  book  in  such  part  of  Her  Majesty's  dominions. 

Article  8. 

No  Copyright  in  immoral  Publications. 

No  copyright  can  exist  in  anything  in  which  copyright  would  other- 
wise exist  if  it  is  immoral,  irreligious,  seditious,  or  libelous,  or  if  it 
professes  to  be  what  it  is  not,  in  such  a  manner  as  to  be  a  fraud  upon 
the  purchasers  thereof. 

Article  9. 

What  is  Infringement  of  Copyright  in  a  Book,  and  what  not — Fair 
Use  of  Books. 

The  owner  of  the  copyright  in  a  book  is  not  entitled  to  prevent 
other  persons  from  publishing  the  matter  contained  in  it  if  they 
invent  or  collect  it  independently,  nor  to  prevent  them  from  making 
a  fair  use  of  its  contents  in  the  composition  of  other  books. 

The  question,  what  is  a  fair  use  of  a  book,  depends  upon  the  cir- 
cumstances of  each  particular  case,  but  the  following  ways  of  using 
a  book  have  been  decided  to  be  fair  : 

(a)  Using  the  information  or  the  ideas  contained  in  it   without 

copying  its  words  or  imitating  them  so  as  to  produce  what 
is  substantially  a  copy. 

(b)  Making  extracts  (even  if  they  are  not  acknowledged  as  such) 

13 


194  THE   QUESTION   OF   COPYRIGHT. 

appearing,  under  all  the  circumstances  of  the  case,  reason- 
able in  quality,  number,  and  length,  regard  being  had  to 
the  object  with  which  the  extracts  are  made  and  to  the  sub- 
jects to  which  they  relate. 

(c)  Using  one  book  on  a  given  subject  as  a  guide  to  authorities 

afterward  independently  consulted  by  the  author  of  another 
book  on  the  same  subject. 

(d)  Using  one  book  on  a  given  subject  for  the  purpose  of  checking 

the  results  independently  arrived  at  by  the  author  of  another 
book  on  the  same  subject. 

An  abridgment  may  be  an  original  work  if  it  is  produced  by  a  fair 
use  of  the  original  or  originals  from  which  it  is  abridged,  but  the  re- 
publication of  a  considerable  part  of  a  book  is  an  infringement  of  the 
copyright  existing  in  it,  although  it  may  be  called  an  abridgment, 
and  although  the  order  in  which  the  republished  parts  are  arranged 
may  be  altered. 

Article  io. 

Crown   Copyright. 

It  is  said  that  Her  Majesty  and  her  successors  have  the  right  of 
granting  by  patent  from  time  to  time  to  their  printers  an  exclusive 
right  to  print  the  text  of  the  authorized  version  of  the  Bible,  of  the 
Book  of  Common  Prayer,  and  possibly  the  text  of  Acts  of  Parliament. 

Article  ii. 

University  Copyright. 

The  Universities  of  Oxford,  Cambridge,  Edinburgh,  Glasgow,  St. 
Andrew's,  and  Aberdeen,  each  college  or  house  of  learning  at  the 
universities  of  Oxford  and  Cambridge,  Trinity  College,  Dublin,  and 
the  colleges  of  Eton,  Westminster,  and  Winchester,  have  forever 
the  sole  liberty  of  printing  and  reprinting  all  such  books  as  have  been 
or  hereafter  may  be  bequeathed  or  given  to  them,  or  in  trust  for  them 
by  the  authors  thereof,  or  by  their  representatives,  unless  they  were 
given  or  bequeathed  for  any  limited  term. 

Article  12. 

How  such  Right  forfeited. 

The  exclusive  right  mentioned  in  the  last  article  lasts  so  long  only 
as  the  books  or  copies  belonging  to  the  said  universities  or  colleges 


COPYRIGHT   LAW   OF   GREAT   BRITAIN.         1 95 

are  printed  only  at  their  own  printing  presses  within  the  said  univer- 
sities or  colleges  respectively,  and  for  their  sole  benefit  and  advan- 
tage. 

If  any  university  or  college  delegates,  grants,  leases,  or  sells  its 
copyright  or  exclusive  right  of  printing  books  granted  by  15  Geo.  3. 
c.  53,  or  any  part  thereof,  or  allows  or  authorizes  any  person  to  print 
or  reprint  the  same,  the  privilege  granted  by  the  said  Act  becomes 
void  and  of  no  effect,  but  the  universities  or  colleges  may  sell  the 
copyrights  bequeathed  to  them  as  for  the  terms  secured  to  authors  by 
the  8  Anne  c.  19. 

Article  13. 

Term  of  Copyright  in  Dramatic  Pieces. 

The  author,  or  the  assignee  of  the  author,  of  any  tragedy,  comedy, 
play,  opera,  farce,  or  any  other  dramatic  piece  or  entertainment,  or 
musical  composition  not  printed  and  published  by  such  author  or 
assignee,  has,  as  his  own  property,  the  sole  liberty  of  representing  or 
causing  to  be  represented  or  performed,  any  such  dramatic  piece  or 
musical  composition  at  any  place  of  dramatic  entertainment  whatever 
in  Her  Majesty's  dominions  (possibly  in  perpetuity,  but  more  proba- 
bly for)  whichever  is  the  longer  of  the  two  following  terms,  viz. — 

(1)  Forty-two  years  from  the  first  public  representation  of  such 

dramatic  piece  or  musical  composition. 

(2)  The  life  of  the  author  and  a  further  term  of  seven  years  begin- 

ning from  his  death. 

The  singing  of  a  single  song  of  a  dramatic  character  in  a  dramatic 
manner  may  amount  to  a  dramatic  entertainment  within  the  meaning 
of  this  article. 

Anyplace  at  which  a  dramatic  entertainment  is  given  [?  for  profit] 
on  any  particular  occasion  is  a  place  of  dramatic  entertainment  within 
the  meaning  of  this  article. 

Article  14. 
Condition  of  Copyright  in  Dramatic  Pieces. 

The  exclusive  right  of  representing  or  performing  a  dramatic  piece 
or  musical  composition  cannot  be  gained  if  such  dramatic  piece  or 
musical  composition  has  been  printed  and  published  as  a  book  before 
the  first  representation  thereof. 


I96  THE   QUESTION   OF   COPYRIGHT. 

Or,  if  it  has  been  publicly  represented  or  caused  to  be  represented 
by  the  author  or  his  assigns  in  any  place  out  of  Her  Majesty's  domin- 
ions before  it  was  publicly  represented  in  them,  except  under  the 
International  Copyright  Act. 

Articlk  15. 

Copyright  in  and  Representation  0/  Dramas. 

Copyright  in  a  book  containing  or  consisting  of  a  dramatic  piece 
or  musical  composition  is  a  right  distinct  from  the  right  to  represent 
such  dramatic  piece  or  musical  composition  on  the  stage,  and  no  as- 
signment of  the  copyright  of  any  such  book  conveys  to  the  assignee 
the  right  of  representing  or  performing  such  dramatic  piece  or  mu- 
sical composition  unless  an  entry  of  such  assignment  is  made  in  the 
registry  book  mentioned  in  Article  23,  expressing  the  intention  of 
the  parties  that  such  right  should  pass. 

Article  16. 

Representation  of  a  Drama  no  Infringement  of  Copyright, 

A  dramatic  piece  or  musical  composition  published  as  a  book  may 
(it  seems  probable)  be  publicly  represented  without  the  consent  of 
the  author  or  his  assigns. 

Article  17. 

Dramatization  of  Novels. 

The  public  representation  of  a  dramatic  piece  constructed  out  of  a 
novel  is  not  an  infringement  of  the  copyright  of  the  author  of  the 
novel  or  his  assigns,  but  the  printing  and  publication  as  a  book  of 
such  dramatic  piece  so  represented  may  be  such  an  infringement. 

If  two  persons  independently  of  each  other  convert  a  novel  into  a 
dramatic  piece,  each  has  an  exclusive  right  of  representing  his  own 
dramatic  piece,  though  one  of  them  may  be  the  author  of  the  novel 
so  dealt  with  and  though  the  two  pieces  may  have  parts  in  common. 

Article  18. 

Infringement  of  Copyright  in  a  Musical  Composition. 

Copyright  in  a  musical  composition  is  infringed  when  a  substantial 
portion  of  the  music  in  which  copyright  exists  is  reproduced  either 
without  any  alteration  or  with  such  alterations  as  are  required  to 


COPYRIGHT  LAW   OF  GREAT  BRITAIN.         197 

adapt  it  to  a  different  purpose  or  instrument,  the  alterations  being  of 
such  a  character  that  the  substantial  identity  between  the  original  and 
the  altered  version  can  be  recognized  by  the  ear. 

Article  19. 
Copyright  in  Lectures. 

The  author  of  any  lecture,  or  his  assign,  has  by  statute  the  sole 
right  of  publishing  any  lecture,  of  the  delivery  of  which  notice  in 
writing  has  been  given  to  two  justices  living  within  five  miles  from 
the  place  where  such  lecture  is  delivered  two  days  at  least  before  it 
is  delivered,  unless  such  lecture  is  delivered  in  any  university,  pub- 
lic school,  or  college,  or  on  any  public  foundation,  or  by  any  person 
in  virtue  of  or  according  to  any  gift,  endowment,  or  foundation. 

The  author  of  any  lecture  has  [probably]  at  common  law  the  same 
right  as  by  statute,  without  giving  such  notice  as  is  required  by 
statute,  but  he  cannot  recover  the  penalties  provided  by  the  Act  and 
specified  in  Article  35,  for  an  infringement  of  his  copyright. 

Article  20. 

Copyright  in  Sculpture. 

Every  person  who  makes  or  causes  to  be  made  any  new  and  original 
sculpture,  or  model,  or  copy,  or  cast,  .  .  .  :  has  the  sole  right 
therein  for  the  term  of  14  years  from  first  putting  forth  or  publishing 
the  same,  provided  that  the  proprietor  causes  his  name,  with  the  date, 
to  be  put  on  every  such  thing  before  it  is  published.  If  the  proprietor 
be  living  at  the  end  of  the  term  of  14  years,  his  right  returns  to  him 
for  a  further  term  of  14  years,  unless  he  has  divested  himself  thereof. 

Article  21. 

Copyright  in  Paintings  and  Photographs. 

The  author,  being  a  British  subject  or  resident  within  the  domin- 
ions of  Her  Majesty,  of  any  original  painting,  drawing  or  photo- 
graph, not  having  been  sold  before  the  29th  July,  1862,  has  the  sole 

1  Here  is  a  reference  to  a  note,  scheduling  the  usual  subjects  of 
sculpture,  but  explaining  that  the  section  of  the  law  here  concerned 
"  is  a  miracle  of  intricacy  and  verbosity"  and  involves  much  doubt. 


198  THE   QUESTION   OF  COPYRIGHT. 

and  exclusive  right  of  copying,  engraving,  reproducing,  and  multi- 
plying such  painting  or  drawing,  and  the  design  thereof,  or  such 
photograph  and  the  negative  thereof,  by  any  means  or  of  any  size, 
whether  made  in  the  Queen's  dominions  or  not,  for  the  term  of  his 
life  and  seven  years  after  his  death,  but  this  right  does  not  affect  the 
right  of  any  other  person  to  represent  any  scene  or  object  represented 
by  any  such  painting. 

If  any  painting  or  drawing,  or  the  negative  of  any  photograph, 
hereinbefore  mentioned,  is  made  by  the  author  for  or  on  behalf  of 
any  other  person  for  a  good  or  valuable  consideration,  such  person  is 
entitled  to  copyright  therein. 

If  any  such  thing  is,  after  the  29th  July,  1862,  for  any  such  con- 
sideration transferred  for  the  first  time  by  the  owner  to  any  other 
person,  the  owner  may,  by  an  agreement  in  writing  signed  at  or  be- 
fore the  time  of  such  transfer  by  the  transferee,  reserve  the  copy- 
right to  himself,  or  he  may,  by  an  agreement  in  writing  signed  by 
himself  or  by  his  agent  duly  authorized,  transfer  the  copyright  to 
such  transferee.  (If  no  such  agreement  in  writing  is  made,  the 
copyright  in  such  painting  ceases  to  exist.) 

Article  22. 
Copyright  in  Engravings. 

Every  one  has  for  28  years  from  the  first  publishing  thereof  the 
sole  right  and  liberty  of  multiplying,  by  any  means  whatever,  copies 
of  any  print  of  whatever  subject  which  he  has — 

(a)  Invented  or  designed,  graved,  etched,  or  worked  in  mezzotinto 

or  chiaro-oscuro  ;  or  which  he  has — 
(a)  From  his  own  work,  design,  or  invention,  caused  or  procured 

to  be  designed,  engraved,  etched,  or  worked  in  mezzotinto 

or  chiaro-oscuro  ;  or  which  he  has — 
(V)  Engraved,  etched,  or  worked  in  mezzotinto  or  chiaro-oscuro.  or 

caused  to  be  engraved,  etched,  or  worked  from  any  picture, 

drawing,  model,  or  sculpture,  either  ancient  or  modern  : 

Provided  that  such  prints  are  truly  engraved  with  the  name  of  the 
proprietor  on  each  plate  and  printed  on  every  print. 

Prints  taken  by  lithography  and  other  mechanical  processes  are 
now  upon  the  same  footing  as  engravings. 


COPYRIGHT   LAW    OF   GREAT   BRITAIN. 


199 


Article  23. 
The  Registration  of  Books. 

A  book  of  registry  must  be  kept  at  Stationers'  Hall,  in  which  the 
proprietor  of  copyright  in  any  book,  or  of  the  right  of  representation 
of  any  dramatic  piece  or  musical  composition,  whether  in  manuscript 
or  otherwise,  may  upon  the  payment  of  a  fee  of  $s.  enter  in  the  reg- 
ister the  particulars  stated  in  the  form  given  in  the  foot-note.1 

The  proprietor  of  the  copyright  in  any  encyclopaedia,  review, 
magazine,  or  periodical  work,  or  other  work  published  in  a  series,  is 
entitled  to  all  the  benefit  of  registration  on  entering  in  the  book  of, 
registry  the  title  of  such  work,  the  time  of  publishing  the  first  volume 
or  part,  and  the  name  and  place  of  abode  of  the  proprietor  and  pub- 
lisher when  the  publisher  is  not  also  the  proprietor. 

Every  such  registered  proprietor  may  assign  his  interest  or  any 
portion  of  his  interest  by  making  an  entry  in  the  said  book  of  such 
assignment  in  the  form  given  in  the  foot-note.2 

Licenses  affecting  any  such  copyright  may  also  be  registered  in 
the  said  register. 

Any  person  aggrieved  by  any  such  entry  may  apply  to  the  High 
Court,  or  any  judge  thereof,  to  have  such  entry  expunged  or  varied, 
and  the  court  may  make  such  order  for  that  purpose  as  it  thinks  just. 


1  (a)  Or 

ginal  Entry  of 

Proprietorship 

of  Copyright  of 

a  Book. 

Time  of  mak- 
ing the  En- 
tries. 

Title  of  the 
Book. 

Name  of  the 
Publisher  and 
Place  of  Publi- 
cation. 

Name  and 
Place  of  Abode 
of  the  Proprie- 
tor of  the  Copy- 
right. 

Date  of  First 
Publication. 

s  {6)  Form  of  Entry  of  Assignment  of  Copyright  in  any  Book  previously 
registered. 


Date  of  Entry. 


Title  of  Book. 

Set  out  the  Title  and  refer  to  the 
Page  of  the  Registry  Book  in  which 
the  Original  Entry  of  the  Copyright 
thereof  is  made. 


Assignor  of    Assignee  of 
Copyright.      Copyright. 


200  THE   QUESTION   OF   COPYRIGHT. 

It  is  a  misdemeanor  to  make  or  cause  to  be  made  any  false  entry 
in  such  book  wilfully. 

The  officer  in  charge  of  the  book  is  bound  to  give  sealed  and 
certified  copies  of  the  entries  contained  therein  on  payment  of  a  fee 
of  5^.,  and  such  copies  are  prim  &  facie  proof  of  the  matters  alleged 
therein. 

The  fee  for  the  registration  of  university  copyrights  and  for  copies 
of  them  is  6d.,  and  they  may  be  inspected  without  fee. 

Article  24 
Effect  of  Registration  in  case  of  Books. 

No  proprietor  of  copyright  in  any  book  can  take  any  proceedings 
in  respect  of  any  infringement  of  his  copyright  unless  he  has,  before 
commencing  such  proceedings,  caused  an  entry  to  be  made  in  the 
said  register  under  the  last  article. 

The  omission  to  make  such  entry  does  not  affect  the  copyright  in 
any  book,  but  only  the  right  to  sue  or  proceed  in  respect  of  the 
infringement  thereof. 

Article  25. 
Registration  in  respect  of  Dramatic  Copyright. 

The  remedies  which  the  proprietor  of  the  sole  liberty  of  represent- 
ing any  dramatic  piece  has  under  Article  32  are  not  prejudiced  by 
an  omission  to  make  any  entry  respecting  such  exclusive  right  in  the 
said  register. 

Article  26. 
Registration  of  Copyright  in  Paintings,  etc. 

A  book  entitled  the  Register  of  Proprietors  of  Copyright  in  Paint- 
ings, Drawings,  and  Photographs,  must  be  kept  at  the  Hall  of  the 
Stationers'  Company. 

A  memorandum  of  every  copyright  to  which  any  person  is  entitled 
under  Article  21,  and  of  every  subsequent  assignment  of  any  such 
copyright,  must  be  entered  therein  ;  such  memorandum  must  contain 
a  statement  of  : 

(a)  The  date  of  such  agreement  or  assignment  ; 

(o)  The  names  of  the  parties  thereto  ; 

(c)  The  name  and  place  of  abode  of  the  person  in  whom  such 


COPYRIGHT   LAW   OF   GREAT   BRITAIN.         201 

copyright  is  vested  by  virtue  thereof,  and  of  the  author  of 
the  work  ; 
(d)  A  short  description  of  the  nature  and  subject  of  such  work, 
and,  if  the  person  registering  so  desires,  a  sketch,  outline, 
or  photograph  of  the  work  in  addition  thereto. 

No  proprietor  of  any  such  copyright  is  entitled  to  the  benefit  of  25 
&  26  Vict.  c.  68  until  such  registration,  and  no  action  can  be  main- 
tained, nor  any  penalty  be  recovered,  in  respect  of  anything  done 
before  registration  ;  but  it  is  not  essential  to  the  validity  of  a  regis- 
tered assignment  that  previous  assignments  should  be  registered. 

The  three  paragraphs  of  Article  23,  relating  to  the  correction  of 
errors  in  the  register,  the  making  of  false  entries,  and  the  giving  of 
certificates,  apply  also  to  the  book  in  this  article  mentioned. 

Article  27. 

Penalties  for  infringing  Copyright  in  Books. 

Every  one  is  liable  to  an  action  who,  in  any  part  of  the  British 
dominions — 

(a)  Prints  or  causes  to  be  printed,  either  for  sale  or  exportation, 

any  book  in  which  there  is  subsisting  copyright,  without  the 
consent  in  writing  of  the  proprietor  ; 

(b)  Imports  for  sale  or  hire  any  such  book  so  having  been  unlaw- 

fully printed  from  parts  beyond  the  sea  ; 

(c)  Knowingly   sells,    publishes,  or  exposes    to    sale    or  hire,  or 

causes  to  be  sold,  published,  or  exposed  to  sale  or  hire,  or 
has  in  his  possession  for  sale  or  hire  any  book  so  unlawfully 
printed  or  imported. 

The  action  must  be  brought  in  a  Court  of  Record  and  within 
twelve  months  after  the  offence. 

Article  28. 

Special  Penalty  for  unlawfully  importing  Copyright  Books. 

The  following  consequences  are  incurred  by  every  one,  except  the 
proprietor  of  the  copyright  of  any  book,  or  some  person  authorized 
by  him,  who  imports  or  brings,  or  causes  to  be  imported  or  brought 
[for  sale  or  hire],  into  the  United  Kingdom,  or  into  any  other  part  of 
the  British  dominions,  any  printed  book  in  which  there  is  copyright, 


202  THE   QUESTION   OF  COPYRIGHT. 

first  composed,  written,  or  printed  [and  published]  in  any  part  of 
the  United  Kingdom,  and  reprinted  in  any  country  or  place  out  of 
the  British  dominions  ; 

Or,  who  knowingly  sells,  publishes,  or  exposes  to  sale,  or  lets  to 
hire,  or  has  in  his  possession  for  sale  or  hire  any  such  book,  that  is 
to  say  : 

(a)  Every  such  book  is  forfeited,  and  must  be  seized  by  every 

officer  of  Customs  or  Excise,  and  in  that  case  must  be 
destroyed  by  such  officer. 

(b)  The    person  so  offending   must,   upon   conviction   before  two 

justices,  be  fined  10/.  for  every  such  offence,  and  double 
the  value  of  every  copy  of  any  such  book  in  respect  of 
which  he  commits  any  such  offence. 

Provided  that  if  the  Legislature  or  proper  legislative  authorities 
in  any  British  possession  pass  an  Act  or  make  an  Ordinance,  which, 
in  the  opinion  of  Her  Majesty,  is  sufficient  for  the  purpose  of  secur- 
ing to  British  authors  reasonable  protection  within  such  possessions, 
Her  Majesty  may  approve  of  such  Act,  and  issue  an  Order  in  Council 
declaring  that  so  long  as  the  provisions  of  such  Act  remain  in  force, 
the  prohibition  hereinbefore  contained  shall  be  suspended  so  far  as 
regards  such  colony. 

Article  29. 

Pirated  Copies  forfeited  to  Registered  Owner. 

All  copies  of  any  book  in  which  there  is  a  duly  registered  copyright 
unlawfully  printed  or  imported  without  the  consent  in  writing  under 
his  hand  of  the  registered  proprietor  of  the  copyright  are  deemed  to 
be  the  property  of  the  registered  proprietor  of  such  copyright,  and 
he  may  sue  for  and  recover  the  same,  with  damages  for  the  detention 
thereof,  from  any  person  who  detains  them  after  a  demand  thereof 
in  writing. 

Article  30. 

Copies  of  Books  to  be  delivered  for  Public  Libraries,  and  Penalties 
for  Non-delivery. 

A  copy  of  the  first  edition  and  of  every  subsequent  edition  contain- 
ing additions  and  alterations  of  every  book  published  in  any  part  of 
the    British   dominions    must    be   delivered   at  the   British  Museum 


COPYRIGHT  LAW   OF  GREAT   BRITAIN.        203 

between  10  A.  m.  and  4  p.  m.  on  some  week-day,  other  than  Ash 
Wednesday,  Good  Friday,  or  Christmas  Day,  within  a  month  after 
its  publication,  if  it  is  published  in  London,  within  three  months  if 
it  is  published  in  the  United  Kingdom  elsewhere  than  in  London, 
and  within  twelve  months  if  it  is  published  in  any  other  part  of  the 
British  dominions. 

It  may  be  delivered  to  any  person  authorized  by  the  Trustees  of 
the  British  Museum  to  receive  it,  and  such  person  must  give  a  receipt 
in  writing  therefor. 

Copies  of  every  edition  of  every  book  published  must,  if  demanded, 
be  delivered  to  an  officer  of  the  Stationers'  Company  for  each  of  the 
following  libraries  :  the  Bodleian  Library,  the  Cambridge  University 
Library,  the  Advocates  Library  at  Edinburgh,  and  the  Library  of 
Trinity  College,  Dublin. 

The  demand,  in  writing,  must  be  left  at  the  place  of  abode  of  the 
publisher,  within  twelve  months  after  the  publication  of  the  book, 
and  the  copies  must  be  delivered  within  one  month  after  such  de- 
mand, either  to  the  Stationers'  Company  or  to  the  said  libraries,  or 
to  any  one  authorized  to  receive  the  copies  on  their  behalf. 

The  copy  for  the  British  Museum  must  be  bound,  stitched,  or 
sewed  together,  and  upon  the  best  paper  on  which  the  book  is 
printed. 

The  copies  for  the  other  libraries  mentioned  must  be  upon  the 
paper  of  which  the  largest  number  of  copies  of  the  book  or  edition  are 
printed  for  sale,  in  the  like  condition  as  the  copies  prepared  for  sale 
by  the  publisher. 

The  copies  must  in  each  case  include  all  maps  and  prints  belong- 
ing thereto. 

Any  publisher  making  default  in  such  delivery  as  is  hereinbefore 
mentioned,  is  liable  to  a  maximum  penalty  of  5/.  and  the  value  of 
the  copy  not  delivered.  This  penalty  may  be  recovered  upon  sum- 
mary proceeding  before  two  justices  of  the  peace,  or  a  stipendiary 
magistrate,  at  the  suit  of  the  librarian,  or  other  officer  properly 
authorized,  of  the  library  concerned. 

Article  31. 
Penalty  for  Offences  against   University  Copyright. 

Every  one  incurs  the  penalties  hereinafter  mentioned  who  does  any 
of  the  following  things  with  any  book  of  which  the  copyright  is 


204  THE   QUESTION   OF   COPYRIGHT. 

vested   in   any  university  or  college   under  Article  n  ;    (that  is  to 
say,) 

(a)  Who    prints,  reprints,  or  imports,   or  causes  to  be   printed, 

reprinted,  or  imported  any  such  book. 
(3)  Knowing  the  same  to  be  so  printed  or  reprinted,  sells,  pub- 
lishes, or  exposes  to  sale,  or  causes  to  be  sold,  published,  or 
exposed  to  sale,  any  such  book. 

The  penalties  for  the  said  offences  are  : 

(a)  The  forfeiture  of  every  sheet  being  part  of  such  book  to  the 
university  or  college  to  which  the  copyright  of  such  book 
belongs,  which  university  or  college  must  forthwith  cancel 
and  make  waste  paper  of  them. 

(6)  One  penny  for  every  sheet  found  in  the  custody  of  such  person 
printing  or  printed,  published  or  exposed  to  sale,  half  to  go 
to  the  Queen,  and  half  to  the  informer. 

None  of  the  penalties  aforesaid  can  be  incurred — 

Unless  the  title  to  the  copyright  of  the  book  in  respect  of  which 
the  offence  was  committed  was  registered  either  before  24th 
June,  1775,  or  within  two  months  after  the  time  when  the 
bequest  or  gift  of  the  copyright  of  any  book  came  to  the 
knowledge  of  the  vice-chancellor  of  any  university  or  the 
head  of  any  college  or  house  of  learning  ; 

Or  unless  the  clerk  of  the  Stationers'  Company,  being  duly  re- 
quired to  make  the  entry,  refuses  to  do  so,  and  the  univer- 
sity advertises  such  refusal  in  the  Gazette,  in  which  case  the 
clerk  incurs  a  penalty  of  20/.  to  the  proprietors  of  the 
copyright. 

The  penalty  must  be  sued  for  in  the  High  Court. 

Article  32. 

Penalty  for  performing  Dramatic  Pieces. 

Every  person  who,  without  the  consent  in  writing  of  the  author  or 
other  proprietor  first  obtained,  represents  or  causes  to  be  represented 
at  any  place  of  dramatic  entertainment  in  the  British  dominions  any 
dramatic  piece  or  musical  composition  is  liable  to  pay  to  the  author 
or  proprietor  for  every  such  representation  an  amount  not  less  than 
\os.,  or  the  full  amount  of  the  benefit  or  advantage  arising  from 


COPYRIGHT  LAW   OF   GREAT   BRITAIN.         20$ 

such  representation,  or  the  injury  or  loss  sustained  by  the  plaintiff 
therefrom,  whichever  may  be  the  greater  damages. 

The  penalty  may  be  recovered  in  any  court  having  jurisdiction  in 
such  cases. 

Article  33. 

Penalty  for  Infringement  of  Copyright  in  Works  of  Art. 

Every  one  (including  the  author,  when  he  is  not  the  proprietor) 
commits  an  offence  who,  without  the  consent  of  the  proprietor  of 
the  copyright  therein,  does  any  of  the  following  things  with  regard 
to  any  painting,  drawing,  or  photograph  in  which  copyright  exists  ; 
(that  is  to  say,) 

(a)  Repeats,  copies,  colorably  imitates,  or  otherwise  multiplies, 
for  sale,  hire,  exhibition,  or  distribution,  any  such  work  ; 
or  the  design  thereof  ; 

(o)  Causes  or  procures  to  be  done  anything  mentioned  in  (a) ; 

(c)  Sells,  publishes,  lets  to  hire,  exhibits,  or  distributes,  offers  for 

any  such  purposes,  imports  into  the  United  Kingdom  any 
such  repetition,  copy,  or  other  imitation  of  any  such  work 
or  of  the  design  thereof,  knowing  that  it  has  been  unlaw- 
fully made  ; 

(d)  Causes  or  procures  to  be  done,  any  of  the  things  mentioned 

in  (c) ; 

(e)  Fraudulently  signs  or  otherwise  affixes  or  fraudulently  causes 

to  be  signed  or  otherwise  affixed  to  or  upon  any  painting, 
drawing,  or  photograph  or  the  negative  thereof,  any  name, 
initials,  or  monogram. 

(f)  Fraudulently    sells,    publishes,    exhibits,    or    disposes   of,  or 

offers  for  sale,  exhibition,  or  distribution,  any  painting, 
drawing,  or  photograph,  or  negative  of  a  photograph,  hav- 
ing thereon  the  name,  initials,  or  monogram  of  a  person 
who  did  not  execute  or  make  such  work  ; 

(g)  Fraudulently  utters,  disposes    of,  or  puts  off,  or  causes  to  be 

uttered  or  disposed  of,  any  copy  or  colorable  imitation  of 
any  painting,  drawing,  or  photograph,  or  negative  of  a 
photograph,  whether  there  is  subsisting  copyright  therein  or 
not,  as  having  been  made  or  executed  by  the  author  or 
makers  of  the  original  work  from  which  such  copy  or  imita- 
tion has  been  taken  ; 


206  THE   QUESTION   OF   COPYRIGHT. 

(//)  Makes  or  knowingly  sells,  publishes,  or  offers  for  sale,  any 
painting,  drawing,  or  photograph  which  after  being  sold  or 
parted  with  by  the  author  or  maker  thereof,  has  been  altered 
by  any  other  person  by  addition  or  otherwise,  or  any  copy 
of  such  work  so  altered,  or  of  any  part  thereof,  as  the 
unaltered  work  of  such  author  or  maker  during  his  life  and 
without  his  consent. 

Every  one  who  commits  any  of  the  offences  (a),  (6),  (<•),  or  (d), 
forfeits  to  the  proprietor  of  the  copyright  for  the  time  being  a  sum 
not  exceeding  10/. ,  and  all  such  repetitions,  copies,  and  imitations 
made  without  such  consent  as  aforesaid,  and  all  negatives  of  photo- 
graphs made  for  the  purpose  of  obtaining  such  copies. 

Every  one  who  commits  any  of  the  offences  (e),  (/),  (g),  or  (A) 
forfeits  to  the  person  aggrieved  a  sum  not  exceeding  10/.,  or  double 
the  price,  if  any,  at  which  all  such  copies,  engravings,  imitations, 
or  altered  works  were  held  or  offered  for  sale,  and  all  such  copies, 
engravings,  imitations,  and  altered  works  are  forfeited  to  the  person 
whose  name,  initials,  or  monogram  is  fraudulently  signed  or  affixed, 
or  to  whom  such  spurious  or  altered  work  is  fraudulently  or  falsely 
ascribed  ;  provided  that  none  of  the  last-mentioned  penalties  are 
incurred  unless  the  person  to  whom  such  spurious  or  altered  work  is 
so  fraudulently  ascribed,  or  whose  initials,  name,  or  monogram  is  so 
fraudulently  or  falsely  ascribed,  was  living  at  or  within  20  years  next 
before  the  time  when  the  offence  was  committed. 

The  penalties  hereinbefore  specified  are  cumulative,  and  the  per- 
son aggrieved  by  any  of  the  acts  before  mentioned  may  recover 
damages  in  addition  to  such  penalties,  and  may  in  any  case  recover 
and  enforce  the  delivery  to  him  of  the  things  specified,  and  recover 
damages  for  their  retention  or  conversion. 

The  penalties  may  be  recovered  either  by  action  or  before  two 
justices  or  a  stipendiary  magistrate. 

Article  34. 

Importation  of  pirated  Works  of  Art  prohibited. 

The  importation  into  the  United  Kingdom  of  repetitions,  copies, 
or  imitations  of  paintings,  drawings,  or  photographs  wherein,  or  iq 
the  design  whereof,  there  is  an  existing  copyright  under  25  &  26 
Vict.  c.  68,  or  of  the  design  thereof,  or  of  the  negatives  of  photo- 


COPYRIGHT   LAW   OF   GREAT   BRITAIN.         207 

graphs,  is  absolutely  prohibited,  except  by  the  consent  of  the  pro- 
prietor of  the  copyright  or  his  agent  authorized  in  writing. 

Article  35. 
Penalty  for  pirating  Lectures. 

Every  person  commits  an  offence  who,  having  obtained  or  made  a 
copy  of  any  lecture,  prints  or  otherwise  copies  and  publishes  the 
same,  or  causes  it  to  be  so  dealt  with  without  the  leave  of  the  author 
or  his  assigns  ; 

Or,  who,  knowing  it  to  have  been  printed  or  copied  or  published 
without  such  consent,  sells,  publishes,  or  exposes  it  to  sale  or  causes 
it  to  be  so  dealt  with  ; 

Every  person  who  commits  such  offence  forfeits  such  printed  or 
copied  lectures,  together  with  one  penny  for  every  sheet  thereof 
found  in  his  custody,  half  to  the  Queen  and  half  to  the  informer. 

The  printing  and  publishing  of  any  lecture  in  any  newspaper 
without  leave  is  an  offence  within  the  meaning  of  this  article. 

This  section  does  not  apply  to  the  publication  of  lectures  which 
have  been  printed  and  published  as  books  at  the  time  of  such  pub- 
lication. 

The  penalty  must  be  sued  for  in  the  High  Court. 

Article  36. 
Penalty  for  pirating  Sculptures. 

Every  person  is  liable  to  an  action  for  damages  who  makes  or 
imports,  or  causes  to  be  made  or  imported,  or  exposed  to  sale,  or 
otherwise  disposed,  anything  of  which  the  copyright  is  protected  by 
the  54  Geo.  c.  56. 

This  article  does  not  apply  to  any  person  who  purchases  the  right 
or  property  of  anything  protected  by  the  said  Act  of  the  proprietor 
by  a  deed  in  writing,  signed  by  him  with  his  own  hand  in  the  pres- 
ence of  and  attested  by  two  credible  witnesses. 

Article  37. 
Penally  for  pirating  Prints  and  Engravings. 

Every  person  commits  an  offence  who,  without  the  consent  of  the 
proprietor  in  writing,  signed  by  him  and  attested  by  two  witnesses — 


208  THE   QUESTION   OF   COPYRIGHT. 

(a)  In  any  manner  copies  and  sells,  or  causes  or  procures  to  be 
copied  and  sold,  in  whole  or  in  part,  any  copyright  print  ; 
or 

(l>)  Prints,  reprints,  or  imports  for  sale  any  such  print,  or  causes 
or  procures  any  such  print  to  be  so  dealt  with  ;  or 

(<r)  Knowing  the  same  to  be  so  printed  or  reprinted  without  the 
consent  of  the  proprietors  publishes,  sells,  exposes  to  sale, 
or  otherwise  disposes  of  any  such  print,  or  causes  or  pro- 
cures it  to  be  so  dealt  with. 

Every  person  committing  any  such  offence  is  liable  to  an  action 
for  damages  in  respect  thereof,  and  forfeits  to  the  proprietor,  who 
must  forthwith  cancel  and  destroy  the  same,  the  plate  on  which  any 
such  print  is  copied,  and  every  sheet  being  part  of  such  print,  or 
whereon  such  print  is  copied,  and  also  five  shillings  for  every  sheet 
found  in  his  custody  in  respect  of  which  any  such  offence  is  com- 
mitted, half  to  the  Queen  and  half  to  the  informer. 

The  penalty  must  be  sued  for  in  the  High  Court  within  six  months 
after  the  offence. 

Article  38. 

International  Copyright  may  be  granted  in  certain  Cases. 

Copyright  in  books,  dramatic  pieces  and  musical  compositions, 
paintings,  drawings,  and  photographs,  sculptures,  engravings,  and 
prints,  first  published  in  foreign  countries,  may  be  granted  to  the 
authors  of  such  works,  in  the  manner,  to  the  extent,  and  on  the 
terms  hereinafter  mentioned,  if  what  Her  Majesty  regards  as  due 
protection  has  been  secured  by  the  foreign  country  in  which  such 
works  are  first  published  for  the  benefit  of  persons  interested  in 
similar  works  first  published  in  Her  Majesty's  dominions. 

Article  39. 
Orders  in  Council  as  to  International  Copyright. 

Her  Majesty  may  by  Order  in  Council  (stating  as  the  ground  for 
issuing  the  same  that  such  protection  as  aforesaid  has  been  secured 
as  aforesaid)  direct  that  the  authors  of  all  or  any  of  the  things  men- 
tioned in  the  last  Article,  being  first  published  in  any  such  foreign 
country  as  is  mentioned  in  that  Article,  shall  have  copyright  therein 
in  Her  Majesty's  dominions  for  a  term,  to  be  specified  in  the  Order, 


COPYRIGHT   LAW    OF   GREAT   BRITAIN.         209 

not  exceeding  the  term  of  copyright  which  authors  of  things  of  the 
same  kind  first  published  in  the  United  Kingdom  are  entitled  to  by 
law  at  the  date  of  the  Order. 

The  terms  so  to  be  specified  and  the  terms  for  registration  and 
delivery  of  copies  of  books  as  hereinafter  mentioned  may  be  different 
for  works  first  published  in  different  foreign  countries,  and  for  differ- 
ent classes  of  such  works. 

Article  40. 

Term  of  International  Copyright. 

The  authors  of  the  works  specified  in  the  Order  are  entitled  to 
copyright  therein  as  follows — 

Under  5  &  6  Vict.  c.  45,  and  the  other  Acts  relating  to  copyright 
in  books,  except  the  sections  relating  to  the  deposit  of  copies  in 
certain  libraries,  if  the  works  specified  in  the  Order  are  books  ; 

Under  the  Engraving  Copyright  Acts,  the  Sculpture  Copyright 
Acts,  or  the  Paintings  Copyright  Act  respectively,  if  the  works 
specified  in  the  Order  are  prints,  engravings,  articles  of  sculpt- 
ure, pictures,  drawings,  or  photographs  ; 

Under  the  Dramatic  Copyright  Acts,  provided  that  such  copyright 
does  not  extend  1 1  prevent  fair  imitations  or  adaptations  to  the 
English  stage  of  any  dramatic  piece  or  musical  composition  pub- 
lished in  any  foreign  country,  if  the  works  specified  in  the 
Order  are  dramatic  pieces  or  musical  compositions,  unless  the 
Order  directs  that  it  shall  extend  to  them. 

Subject  in  each  case  to  such  limitations  as  to  the  duration  of  the 
right  as  may  be  specified  in  the  Order,  and  subject  also  to  the  pro- 
visions hereinafter  contained. 

Article  41. 
No  Work  Copyright  without  Regi stration. 

No  author  of  any  such  work  as  is  referred  to  in  this  chapter  is  en- 
titled to  any  benefit  under  the  provisions  contained  in  it,  unless  such 
work  is  registered,  and  a  copy  of  the  first  edition  and  of  every  sub- 
sequent edition  containing  additions  or  alterations,  but  of  no  other 
editions  of  it,  is  delivered  at  the  Hall  of  the  Stationers'  Company, 
14 


210 


THE   QUESTION   OF  COPYRIGHT. 


within  a  time  to  be  specified  in  the  Order  of  Council,  and  in  the 
manner  prescribed  in  the  schedule  in  the  footnote  hereto.1 

The  three  paragraphs  preceding  the  last  paragrapli  of  Article  23 
apply  to  such  entries. 

The  copy  so  delivered  must  within  one  month  of  its  delivery  be 
deposited  in  the  British  Museum  by  the  officer  of  the  Stationers' 
Company. 

Article  42. 
No  International  Copyright  in  Newspaper  Articles. 

Articles  of  political  discussion   published  in  any   newspaper,  or 


1  Schedule. 

The  register 
must  show,  if 
the  work  is— 

The  title 

Name  and  place 
of    abode    of 
author       (un- 
less the  book 
isanonymous, 
7  &  8  Vict.  c. 
12.  s.  7). 

Name  and  place 
of    abode  of 
proprietor  of 
copyright. 

Time    and 

place  01 
first  publi- 
cation. 

Dramatic  piece 
or   musical 
composition 
printed. 

Do 

Do 

Do 

Do.  and 

time  and 
place  of  first 
representa- 
tion or  per- 
formance. 

Dramatic  piece 
or   musical 
composition 
in  MS. 

Do 

Do 

Do. 

Do.    of   in- 
ventor,      de- 
signer, or  en- 
graver. 

Do 

Do.  First 

publication 
in  foreign 
country. 

Descriptive  title 

Short     descrip- 
tion of  nature 
and  subject  of 
work,   and    a 
sketch  outline 
or     photo- 
graph   there- 
of, if  the  per- 
son   register- 
ing pleases. 

Do,  of  mak- 

Do. 

Do. 

Painting,  Draw- 
ing, or  photo- 
graph. 

Name  and  abode 
of  author. 

COPYRIGHT  LAW   OF  GREAT  BRITAIN.         211 

periodical,  in  any  foreign  country  may,  if  the  source  from  which  the 
same  are  taken  is  acknowledged,  be  republished  or  translated  in  any 
newspaper  or  periodical  in  this  country,  notwithstanding  anything 
hereinbefore  or  hereinafter  contained. 

Articles  on  other  subjects  so  published  may  be  dealt  with  in  the 
same  manner  on  the  same  condition,  unless  the  author  has  signified 
his  intention  of  preserving  the  copyright  therein,  and  the  right  of 
translating  the  same,  in  some  conspicuous  part  of  the  newspaper 
or  periodical  in  which  the  same  was  first  published,  in  which  case 
such  publication  is  to  be  regarded  as  a  book  within  the  meaning  of 
Article  5. 

Article  43. 
Translations  of  Foreign  Books. 

Her  Majesty  may,  by  Order  in  Council,  direct  that  the  authors  of 
books  published,  and  of  dramatic  pieces  first  publicly  represented,  in 
the  foreign  countries  referred  to  in  Article  38,  may,  for  a  period  not 
exceeding  five  years  from  the  publication  of  an  authorized  translation 
thereof,  prevent  the  publication  in  the  British  dominions  of  any  un- 
authorized translation  thereof,  and,  in  the  case  of  dramatic  pieces, 
the  public  representation  of  any  such  translation. 

Upon  the  publication  of  such  Order  the  law  in  force  for  the  time 
being  for  preventing  the  infringement  of  copyright,  and  the  sole 
right  of  representing  dramatic  pieces,  in  the  British  dominions  applies 
to  the  prevention  of  the  publication  of  such  unauthorized  translation. 

Provided  that  no  such  Order  prevents  fair  imitations  or  adapta- 
tions to  the  English  stage  of  any  dramatic  piece  or  musical  composi- 
tion published  in  any  foreign  country. 

But  Her  Majesty  may  by  Order  in  Council  direct  that  this  proviso 
shall  not  apply  to  the  dramatic  pieces  protected  under  the  original 
Order  in  Council. 

If  a  book  is  published  in  parts,  each  part  is  regarded,  for  the  pur- 
poses of  this  article,  as  a  separate  book. 

Article  44. 

Conditions  of  International  Copyright  in  Translations. 

No  author,  and  no  personal  representative  of  any  author,  is  en- 
titled to  the  benefit  of  the  provisions  of  the  last  preceding  article 
unless  he  complies  with  the  following  requisitions  : 


212  THE   QUESTION   OF   COPYRIGHT. 

(a.)  The  original  work  from  which  the  translation  is  to  be  made 
must  be  registered,  and  a  copy  thereof  deposited  in  the  United 
Kingdom,  in  the  manner  required  for  original  works  by  the 
said  International  Copyright  Act,  within  three  calendar  months 
of  its  first  publication  in  the  foreign  country  : 

(b.)  The  author  must  notify  on  the  title-page  of  the  original  work, 
or,  if  it  is  published  in  parts,  on  the  title-page  of  the  first 
part,  or,  if  there  is  no  title-page,  on  some  conspicuous  part  of 
the  work,  that  it  is  his  intention  to  reserve  the  right  of  trans- 
lating it : 

(c.)  The  translation  sanctioned  by  the  author,  or  a  part  thereof, 
must  be  published  either  in  the  country  mentioned  in  the 
Order  in  Council  by  virtue  of  which  it  is  to  be  protected,  or 
in  the  British  dominions,  not  later  than  one  year  after  the 
registration  and  deposit  in  the  United  Kingdom  of  the  origi- 
nal work,  and  the  whole  of  such  translation  must  be  published 
within  three  years  of  such  registration  and  deposit : 

((/.)  Such  translation  must  be  registered,  and  a  copy  thereof  depos- 
ited in  the  United  Kingdom,  within  a  time  to  be  mentioned 
in  that  behalf  in  the  Order  by  which  it  is  protected,  and  in 
the  manner  provided  by  the  said  International  Copyright  Act 
for  the  registration  and  deposit  of  original  works  : 

(e.)  In  the  case  of  books  published  in  parts,  each  part  of  the  origi- 
nal work  must  be  registered  and  deposited  in  this  country, 
in  the  manner  required  by  the  said  International  Copyright 
Act,  within  three  months  after  the  first  publication  thereof  in 
the  foreign  country  : 
(/.)  In  the  case  of  dramatic  pieces  the  translation  sanctioned  by  the 
author  must  be  published  within  three  calendar  months  of  the 
registration  of  the  original  work  : 
(g.)  The  above  requisitions  apply  to  articles  originally  published  in 
newspapers  or  periodicals,  if  the  same  be  afterward  published 
in  a  separate  form,  but  not  to  such  articles  as  originally  pub- 
lished. 

Article  45. 
Importation  of  Pirated  Works. 

The  importation  into  any  part  of  the  British  dominions  of  copies 
of  any  work  of  literature  or  art,  the  copyright  in  which  is  protected 


COPYRIGHT   LAW   OF   GREAT   BRITAIN.         213 

by  the  provisions  of  this  chapter,  and  of  unauthorized  translations 
thereof,  is  absolutely  prohibited,  unless  the  registered  proprietor  of 
the  copyright  therein,  or  his  agent  authorized  in  writing,  consents, 
and  the  provisions  of  Article  28  apply  to  the  importation  of  such 
copies  into  any  part  of  the  British  dominions.1 

1  Since  the  preparation  by  Sir  James  Stephen  of  this  digest,  the  pro- 
visions in  the  above  articles  referring  to  International  Copyright  have 
been  modified  by  the  acceptance  on  the  part  of  Great  Britain  of  the 
provisions  of  the  Convention  of  Berne.  This  Convention  was  de- 
clared to  be  in  force  between  Great  Britain  and  the  other  States 
which  were  parties  to  it,  by  an  order  in  Council  dated  December  5th, 
1887. 

The  text  of  the  Convention  is  given  later  in  this  volume. 

Editor. 


XIV. 

EXTRACT  FROM  THE  REPORT  OF  THE 
BRITISH  COMMISSION  APPOINTED  IN 
1878  BY  THE  QUEEN,  FOR  THE  IN- 
VESTIGATION OF  THE  SUBJECT  OF 
COPYRIGHT. 

TO   THE   QUEEN'S    MOST   EXCELLENT   MAJESTY. 

We,  Your  Majesty's  Commissioners,  appointed  to 
make  inquiry  with  regard  to  the  laws  and  regula- 
tions relating  to  Home,  Colonial,  and  International 
Copyright,  humbly  submit  to  Your  Majesty  this  our 
Report — 

1.  We  deem  it  expedient  to  consider  the  Home,  Colonial,  and 
International  divisions  of  the  subject,  in  the  order  in  which  they  are 
mentioned  in  Your  Majesty's  Commission,  and  thus  first  to  notice 

HOME    COPYRIGHT. 

2.  The  first  object  to  which  we  directed  our  attention  in  relation  to 
Home  Copyright,  was  to  obtain  a  clear  and  systematic  view  of  the 
law  in  force  upon  the  subject  in  this  country. 

3.  We  find  that  it  relates  to  copyright  in  seven  distinct  classes  of 
works,  namely, — 

(1.)  Books  ; 


)  Musical  compositions  ; 

)  Dramatic  pieces ; 

)  Lectures  ; 

)  Engravings  and  other  works  of  the  same  kind  ; 

)  Paintings,  drawings,  and  photographs  ;  and 


(7.)  Sculpture. 


REPORT   OF   THE   BRITISH    COMMISSION.       21 5 

4.  The  law  as  to  copyright  in  designs  did  not  appear  to  us  to  fall 
within  the  terms  of  Your  Majesty's  Commission.  It  differs  in  many 
important  particulars  from  the  other  matters  which  we  have  men- 
tioned, and  it  has  been  recently  made  the  subject  of  legislation. 

5.  The  law  of  England,  as  to  copyright  in  the  matters  above 
enumerated,  consists  partly  of  the  provisions  of  fourteen  Acts  of 
Parliament,  which  relate  in  whole  or  in  part  to  different  branches  of 
the  subject,  and  partly  of  common  law  principles,  nowhere  stated  in 
any  definite  or  authoritative  way,  but  implied  in  a  considerable  num- 
ber of  reported  cases  scattered  over  the  law  reports. 

6.  Our  colleague,  Sir  James  Stephen,  has  reduced  this  matter  to 
the  form  of  a  Digest,  which  we  have  annexed  to  our  Report,  and 
which  we  believe  to  be  a  correct  statement  of  the  law  as  it  stands.1 

7.  The  first  observation  which  a  study  of  the  existing  law  suggests 
is  that  its  form,  as  distinguished  from  its  substance,  seems  to  us  bad. 
The  law  is  wholly  destitute  of  any  sort  of  arrangement,  incomplete, 
often  obscure,  and  even  when  it  is  intelligible  upon  long  study,  it  is 
in  many  parts  so  ill-expressed  that  no  one  who  does  not  give  such 
study  to  it  can  expect  to  understand  it. 

8.  The  common  law  principles  which  lie  at  the  root  of  the  law 
have  never  been  settled.  The  well-known  cases  of  Millar  vs.  Tay- 
lor, Donaldson  vs.  Becket,  and  Jeffries  vs.  Boosey,  ended  in  a  differ- 
ence of  opinion  amongst  many  of  the  most  eminent  judges  who  have 
ever  sat  upon  the  Bench. 

9.  The  fourteen  Acts  of  Parliament  which  deal  with  the  subject 
were  passed  at  different  times  between  1735  and  1875.  They  are 
drawn  in  different  styles,  and  some  are  so  drawn  as  to  be  hardly 
intelligible.  Obscurity  of  style,  however,  is  only  one  of  the  defects 
of  these  Acts.  Their  arrangement  is  often  worse  than  their  style. 
Of  this  the  Copyright  Act  of  1842  is  a  conspicuous  instance. 

10.  The  piecemeal  way  in  which  the  subject  has  been  dealt  with 
affords  the  only  possible  explanation  of  a  number  of  apparently 
arbitrary  distinctions  between  the  provisions  made  upon  matters 
which  would  seem  to  be  of  the  same  nature.     Thus — 

(a.)  The  term  of  copyright  in  books,  and  in  printed  and  published 
dramatic  pieces  and  music,  is  the  life  of  the  author  and 
seven  years  after  his  death,  or  42  years  from  the  date  of 
publication,  whichever  is  the  longer. 

1  See  preceding  chapter. 


2l6  THE   QUESTION   OF   COPYRIGHT. 

(6.)  The  term  of  copyright  in  music  not  printed  and  published  but 
publicly  performed  is  doubtful,  and  may  perhaps  be  per- 
petual. 

(c.)  The  term  of  copyright  in  a  lecture  not  printed  and  published 
but  publicly  delivered  is  wholly  uncertain.  The  term  of 
copyright  in  a  lecture  printed  and  published  is  the  longer  of 
the  two  periods  of  28  years  and  the  life  of  the  author.  It 
may  perhaps  be  doubted  whether  the  term  of  copyright  in 
a  book  consisting  of  a  collection  of  lectures  would  differ 
from  the  term  of  copyright  in  other  books. 

(</.)  The  term  of  copyright  in  engravings,  etc.,  is  28  years  from 
publication;  in  paintings,  etc.,  the  artist's  life  and  seven 
years  ;  in  sculpture,  14  years  from  the  first  "  putting  forth 
or  publishing  "  of  the  work  (an  indefinite  phrase),  14  years 
more  being  given  to  the  sculptor  if  he  is  living  at  the  end 
of  the  first  term. 

11.  Other  singular  distinctions  exist  as  to  the  law  relating  to  reg- 
istration of  copyrights.  No  system  of  registration  is  provided  for 
dramatic  copyright ,  or  for  copyright  in  lectures  or  engravings.  Such 
a  system  is  provided  for  copyright  in  books  and  paintings,  but  its 
effect  varies.  Registration  must  in  either  case  precede  the  taking  of 
legal  proceedings  for  an  infringement  of  copyright,  but  after  regis- 
tration the  owner  of  copyright  in  a  book  may,  while  the  owner  of 
copyright  in  a  painting  may  not,  sue  the  persons  who  infringed  his 
copyright  before  registration. 

12.  The  law  is  not  only  arbitrary  in  some  points,  but  is  incomplete 
and  obscure  in  others.  The  question  whether  there  is  such  a  thing 
as  copyright  at  common  law,  apart  from  statute,  has  never  been 
decided,  and  has  several  times  led  to  litigation.  Some  sort  of  copy- 
right has  been  recognized  in  newspapers,  but  it  is  impossible  to  say 
what  it  is.  It  has  been  decided  on  the  one  hand  that  a  newspaper 
is  not  a  "book,"  within  the  meaning  of  the  Copyright  Act  of  1842, 
and  on  the  other  hand  that  there  is  some  sort  of  copyright  in  news- 
papers, yet  the  courts  have  always  leaned  to  the  opinion  that  there  is 
no  copyright  independent  of  statute  ;— at  all  events  they  have  never 
positively  decided  that  there  is. 

13.  Upon  all  these  grounds  we  recommend  that  the  law  on  this 
subject  should  be  reduced  to  an  intelligible  and  systematic  form. 
This  may  be  effected  by  codifying  the  law,  either  in  the  shape  in 


REPORT   OF   THE   BRITISH   COMMISSION.       2\y 

which  it  appears  in  Sir  James  Stephen's  Digest,  or  in  any  other  which 
may  be  preferred ;  and  our  first,  and,  we  think,  one  of  our  most 
important,  recommendations  is  that  this  should  be  done.  Such  a 
process  would,  amongst  other  things,  afford  an  opportunity  for  mak- 
ing such  amendments  in  the  substance  of  the  law  as  may  be  required. 

14.  We  now  proceed  to  discuss  the  subject  in  detail,  following  the 
order  of  the  Digest,  and  with  reference  to  it.  In  the  margin  of  the 
Digest  we  have,  wherever  it  was  practicable,  noted  the  alterations 
which  we  recommend,  so  that  it  shows  both  what  the  law  in  our 
opinion  is,  and  what  in  our  opinion  it  ought  to  be. 

Unpublished  Works. 

15.  With  respect  to  unpublished  documents  or  works  of  art,  we 
do  not  suggest  any  alteration  in  the  law. 

Necessity  for  Copyright. —  The  Royalty  System. 

16.  With  reference  to  copyright  generally,  we  do  not  propose  to 
enter  upon  the  history  of  the  Copyright  Laws,  nor  to  discuss  the 
various  questions  that  have  from  time  to  time  been  raised  in  connec- 
tion with  the  principle  involved  in  those  laws.  It  is  sufficient  for  the 
present  purpose  to  refer  to  the  above-mentioned  cases  of  Millar  vs. 
Taylor,  Donaldson  vs.  Becket,  and  Jeffries  vs.  Boosey,  and  to  the 
debates  that  have  taken  place  in  Parliament,  in  which  the  arguments 
on  one  side  and  the  other  are  fully  set  forth.  Taking  the  law  as  it 
stands,  we  entertain  no  doubt  that  the  interest  of  authors  and  of  the 
public  alike  requires  that  some  specific  protection  should  be  afforded 
by  legislation  to  owners  of  copyright ;  and  we  have  arrived  at  the 
conclusion  that  copyright  should  continue  to  be  treated  by  law  as  a 
proprietary  right,  and  that  it  is  not  expedient  to  substitute  a  right  to 
a  royalty  defined  by  statute,  or  any  other  right  of  a  similar  kind. 

17.  We  make  special  reference  to  a  system  of  royalty,  because,  in 
the  course  of  our  inquiry,  it  has  been  suggested  that  it  would  be  ex- 
pedient in  the  interest  of  the  public,  and  possibly  not  disadvanta- 
geous to  authors,  to  adopt  such  a  system  in  lieu  of  the  existing  law  of 
copyright ;  and  although  the  change  has  hardly  been  seriously  urged 
upon  us  as  a  practical  measure,  except  by  one  witness,  it  is  of  so  im- 
portant a  character  that  we  desire  to  offer  a  few  observations  upon  it. 

18.  The  royalty  system  may  be  briefly  described  as  a  system  under 
which  the  author  of  a  work  of  literature  or  art,  or  his  assignee,  would 
not  have  the  exclusive  right  of  publication,  but  any  person  would  be 
entitled  to  copy  or  republish  the  work  on  paying  or  securing  to  the 


2l8  THE   QUESTION   OF   COPYRIGHT. 

owner  a  remuneration,  taking  the  form  of  a  royalty  or  definite  sum 
prescribed  by  law,  payable  to  the  owner  for  each  copy  published. 

19.  The  principal  reason  urged  for  the  adoption  of  this  system  is 
the  benefit  that  it  is  supposed  would  arise  to  the  public  from  the 
early  publication  of  cheap  editions.  It  is  now  the  usual  practice  of 
publishers  of  the  best  class  of  literary  works  to  publish  first  an  ex- 
pensive edition,  then,  after  a  period  of  greater  or  less  duration,  ac- 
cording to  the  sale  of  the  work,  an  edition  at  a  medium  price,  and 
finally,  but  often  a  good  many  years  later,  what  are  called  popular 
editions,  at  low  prices.  The  advocates  of  the  royalty  system  say  that, 
if  it  were  adopted,  the  competition  that  would  arise  would  compel 
the  original  publishers  to  publish  at  cheap  prices  ; — that  thus  the 
public  would  be  able  to  procure  books  at  once  which,  under  the  pres- 
ent system,  are  kept  beyond  their  reach  by  high  prices  ; — and  that 
the  advantage  to  authors  would  be  as  great  or  greater  than  it  now  is, 
since  an  extended  sale  might  be  expected  to  follow  publication  at 
lower  prices,  and  the  royalty  would  be  paid  them  even  though  their 
works  proved  failures  in  a  commercial  point  of  view. 

20.  The  opponents  of  the  system  say  that  it  is  notorious  that 
where  one  book  pays  the  publisher  for  his  outlay  and  risk,  many  are 
complete  failures  and  never  pay  even  the  cost  of  publishing  ; — that, 
if  the  royalty  system  were  established,  no  publisher  would  take  the 
risk  of  the  first  publication,  knowing  that,  if  the  work  proved  suc- 
cessful, he  would  immediately  have  his  reward  snatched  from  his 
grasp  by  the  numerous  publishers  who  would  republish  and  under- 
sell him  ; — that  it  would  be  impossible  for  publishers  to  remunerate 
authors  at  the  rate  they  do  now  ; — that  authors  would  lose  the  fair 
remuneration  they  now  obtain,  and  would  often  be  deterred  from 
writing  ; — and  that  many  works,  especially  those  involving  long  prep- 
aration and  large  cost  to  the  author  or  publisher,  which  would  be 
published  under  the  present  system,  could  never  be  brought  out,  on 
account  of  the  increased  risk  that  would  ensue  from  the  royalty  sys- 
tem. 

21.  To  meet  these  objections  it  has  been  suggested  that  there 
should  be  a  limited  period  from  first  publication,  and  that  during 
such  period  republication  by  any  person,  other  than  the  author  and 
publisher,  should  not  be  allowed. 

22.  We  have  thus  briefly  noted  some  of  the  arguments  for  and 
against  the  royalty  system,  but  we  think  it  unnecessary  to  discuss  the 
subject  in  greater  detail,  or  to  point  out  the  practical  difficulties  which 


REPORT   OF   THE  BRITISH    COMMISSION.       219 

the  introduction  of  such  a  scheme  would  necessarily  involve,  or  how 
those  difficulties  might  possibly  be  more  or  less  obviated,  because  we 
are  unable,  after  carefully  considering  the  subject,  to  recommend  for 
adoption  this  change  in  the  existing  law.  We  venture  to  add,  in  con- 
firmation of  our  view,  that  while  the  principle  of  copyright  has  been 
recognized  in  almost  every  foreign  State,  in  no  one  country  has  the 
system  of  royalty  been  adopted,  except  in  a  modified  form  in  Italy, 
as  pointed  out  in  paragraph  39. 

The  Term  of  Copyright. — Books. 

23.  The  term  of  copyright  is  the  next  subject  to  which  our  atten- 
tion has  been  called.  We  have  already  used  this  as  an  illustration 
of  the  anomalies  and  distinctions  which  have  grown  up  in  the  law  of 
copyright.  The  term  of  copyright  in  books  is  for  the  life  of  the 
author  and  7  years  after  his  death,  or  for  42  years  from  the  date  of 
publication,  whichever  period  may  happen  to  expire  last. 

24.  We  purpose  for  the  present  to  confine  our  remarks  to  copy- 
right in  books  and  other  literary  works  comprehended  under  that 
term — that  is  to  say,  "every  volume,  part  or  division  of  a  volume, 
pamphlet,  sheet  of  letter-press,  sheet  of  music,  map,  chart,  or 
plan,  separately  published." 

25.  It  has  been  urged  against  the  present  regulations  for  the  term 
of  copyright  in  books — 1st.  That  the  period  is  not  long  enough  : — 
2dly.  That  copyrights  in  works  by  the  same  author  generally  ex- 
pire at  different  dates  : — 3dly.  That,  owing  to  the  difficulty  of  verify- 
ing the  date  of  publication,  it  is  scarcely  possible  to  ascertain  the 
termination  of  the  copyright.  In  addition  to  these  objections,  others 
have  been  stated  which  it  is  needless  for  us  to  specify  in  this 
place. 

26.  We  have  already  stated  that  we  consider  some  kind  of  pro- 
tection in  the  nature  of  copyright  desirable  ;  and  it  appears  to  us  that 
the  existing  terms  are  not  more  than  sufficient,  if  indeed  they  are 
sufficient,  to  secure  that  adequate  encouragement  and  protection  to 
authors  which  the  interests  of  literature,  and  therefore  of  the  public, 
alike  demand  from  the  State.  We  proceed,  therefore,  to  call  atten- 
tion to  the  three  objections  above  mentioned,  to  the  present  duration 
of  copyright. 

27.  First,  the  period  is  said  not  to  be  long  enough.  The  chief 
reasons  for  this  assertion  are  that  many  works,  and  particularly  those 
of  permanent  value,  are  frequently  but  little  known  or  appreciated 


220  THE   QUESTION   OF   COPYRIGHT. 

for  many  years  after  they  are  published,  and  that  they  do  not  com- 
mand a  sale  sufficient  to  remunerate  the  authors  until  a  considerable 
part  of  the  term  of  copyright  has  expired.  Some  works,  as,  for  in- 
stance, novels  by  popular  authors,  command  an  extensive  sale  and 
bring  to  the  authors  a  large  remuneration  at  once,  but  the  case  is 
altogether  different  with  others,  such  as  works  of  history,  books  of  a 
philosophical  or  classical  character,  and  volumes  of  poems.  In  some 
instances  works  of  these  kinds  have  been  known  to  produce  scarcely 
any  remuneration,  until  the  authors  have  died  and  the  copyrights  have 
nearly  expired,  It  is  also  urged  that  in  the  case  of  many  authors 
who  make  their  living  by  their  pens,  their  families  are  left  without 
provision  shortly  after  their  deaths,  unless  their  works  become  profit- 
able very  soon  after  they  are  written. 

28.  These  arguments  and  others  of  a  like  kind,  which  will  be  found 
not  only  in  the  evidence  we  have  taken,  but  in  the  debates  in  Par- 
liament, are  in  our  opinion  of  great  weight,  but  on  the  other  hand 
we  do  not  lose  sight  of  the  public  interest,  which,  it  has  been  urged 
upon  us,  would  be  prejudiced  by  prolongation  of  copyright.  Greater 
freedom  of  trade  and  competition  are  said  to  be  desirable,  that 
books  may  be  more  abundant  in  supply  and  cheaper  in  price. 

29.  The  second  objection  to  the  present  duration  of  copyright  is, 
that  copyrights  belonging  to  the  same  author  generally  expire  at 
different  dates.  That  it  is  well  founded  is  manifest,  for  if  an  author 
writes  several  works,  or  one  work  in  several  volumes,  which  are  pub- 
lished at  different  times,  as  is  frequently  the  case,  the  copyrights  will 
expire  forty-two  years  from  the  respective  dates  of  publication,  unless 
the  author  happens  to  live  so  long  that  the  period  of  seven  years 
after  his  death  is  beyond  forty-two  years  from  the  publication  of  his 
latest  work  or  volume. 

30.  Under  the  present  system,  moreover,  copyright  in  an  earlier 
edition  expires  before  copyright  in  the  amendments  in  a  later  edition 
of  the  same  work.  We  have  had  evidence  that  in  one  case  the  first 
and  uncorrected  edition  of  an  important  work  was  republished  be- 
fore the  expiration  of  the  copyright  in  the  later  and  improved  edi- 
tions. But  if  the  alteration  in  the  existing  term  of  copyright,  which 
we  suggest  hereafter,  were  adopted,  namely,  that  it  should  be  for  the 
life  of  the  author  and  a  fixed  number  of  years  after  his  death,  all  the 
copyrights  of  the  same  author  would  expire  at  the  same  date,  and  it 
would  then  be  open  to  any  publisher  to  put  out  a  complete  edition  of 
all  the  author's  works,  with  all  the  improvements  and  emendations 


REPORT   OF   THE   BRITISH   COMMISSION.       221 

which  have  appeared  in  the  last  edition,  in  a  uniform  shape  and  at  a 
uniform  price. 

31.  The  third  objection  to  the  present  duration  of  copyright  is 
that  it  is  frequently  difficult,  if  not  impossible,  to  ascertain  its  termi- 
nation, owing  to  the  fact  that  the  expiration  of  the  period  depends 
upon  the  time  of  publication.  It  is  in  most  cases  easy  to  ascertain 
the  date  of  a  man's  death,  but  frequently  impossible  to  fix  with  any 
certainty  the  date  of  the  publication  of  a  book.  Under  the  present 
law  it  is  uncertain  what  constitutes  publication  ;  but  whatever  may 
be  a  publication  sufficient  in  law  to  set  the  period  of  copyright  run- 
ning, it  generally  takes  place  in  such  a  manner  that  the  precise  date 
is  not  noted  even  if  known.  It  is  sometimes  said  that  the  date 
printed  in  the  title-page  of  a  book  should  be  considered  the  date  of 
publication,  but  books  are  frequently  post-dated,  and  in  many  cases 
bear  no  date  at  all.  This  objection  is  one  which,  in  our  opinion, 
should  be  removed. 

32.  The  remedy  which  suggests  itself  to  us  as  the  most  likely  to 
effect  all  the  desired  objects  is,  that  instead  of  the  period  of  copyright 
being,  as  at  present,  a  certain  number  of  years  from  publication,  it 
should  last  for  the  life  of  the  author  and  a  fixed  number  of  years 
after  his  death. 

33.  We  have  been  influenced  in  advising  this  change  in  the  law 
by  the  consideration  that  it  will  have  the  effect  of  assimilating  the 
term  of  copyright  in  books  to  that  of  copyright  in  works  of  fine  art, 
the  duration  of  which,  for  reasons  to  be  hereafter  stated,  is  for  the 
life  of  the  author  and  a  certain  number  of  years  after  his  death.  And 
further,  as  this  mode  of  computing  the  duration  of  copyright  has  been 
adopted  by  the  great  majority  of  foreign  countries,  the  change  in  our 
law  may  facilitate  the  making  of  international  copyright  arrange- 
ments with  other  States. 

34.  Before  proceeding  further  on  this  point  we  think  it  right  to 
notice  a  suggestion  that  has  been  made  to  us,  on  the  assumption  that 
the  duration  of  copyright  would  continue  to  be  for  a  fixed  period  of 
years.  It  has  been  proposed  that,  instead  of  the  present  term  of  42 
years  from  publication,  the  original  right  should  last  for  28  years 
only,  but  that  it  should  be  renewable  for  a  further  period  of  14  or  28 
years  by  registration  by  the  author  or  his  personal  representatives  ; 
and  this  is,  we  learn,  the  law  in  the  United  States  and  Canada.  The 
reasons  advanced  for  this  proposal  are,  that  if  copyrights  are  sold, 
publishers,  as  a  rule,  will  not  give  more  for  the  whole  of  the  present 


222  THE   QUESTION   OF   COPYRIGHT. 

term  of  42  years  than  they  would  if  there  were  only  28  years  that 
they  could  purchase  ;  that  authors  could  thus,  without  any  pecuniary 
loss,  sell  their  copyrights  for  the  first  period  only,  and,  if  their  works 
proved  of  great  and  lasting  value,  would  not  have  finally  parted 
with  all  their  interest,  but  would  be  entitled  to  the  second  term  of  14 
years,  by  which  they  or  their  families  would  receive  a  due  reward  for 
their  labors. 

35.  There  is,  no  doubt,  considerable  force  in  the  argument,  but 
we  would  observe  that  the  advantages  held  out  by  the  change  of  law 
would  not  be  secured  unless,  first,  the  copyright  is  sold,  and  secondly, 
the  author  is  debarred  by  law,  not  only  from  selling,  in  the  first 
instance,  more  than  the  copyright  in  the  term  of  28  years,  but  even 
from  giving  any  binding  undertaking  to  secure  to  the  purchaser, 
either  by  registration  or  otherwise,  the  advantages  of  the  subsequent 
term  of  14  years. 

36.  Now,  whatever  may  be  the  practice  in  the  United  States  and 
Canada,  we  are  satisfied  from  the  evidence  that  in  this  country  many 
authors  do  not  sell  their  copyrights,  and  in  such  cases  no  advantage 
would  arise  from  the  proposed  change.  And,  with  respect  to  the 
second  point,  we  are  not  satisfied  that  the  advantages  expected  from 
the  scheme  counterbalance  the  disadvantage  of  interfering  by  law 
with  freedom  of  contract. 

37.  Should  our  suggestion,  that  copyright  in  future  should  endure 
for  the  life  of  the  author  and  a  fixed  number  of  years  after  his  death, 
be  adopted,  the  proposal  to  divide  the  present,  or  any  other  fixed 
term  is  of  course  inapplicable. 

38.  Assuming,  therefore,  that  the  duration  of  copyright  is  to  be 
for  the  life  of  the  author  and  a  certain  number  of  years  after  his 
death,  we  have  next  to  consider  what  the  number  of  years  should  be. 
According  to  the  existing  law,  the  period  in  the  case  of  books  is  life 
and  7  years,  or  42  years  from  publication,  if  that  period  is  the  last 
to  expire  ;  and  the  period  for  copyright  in  paintings,  drawings,  and 
photographs  has  been  fixed  at  life  and  seven  years. 

39.  We  find  considerable  variety  in  the  terms  fixed  in  other  coun- 
tries, but,  putting  aside  the  United  States,  which  seem  to  have 
adopted  our  existing  term  with  modifications,  we  find  that  the  more 
important  nations  have  adopted  terms  longer  than  our  own.  Thus, 
the  term  in  France  is  the  life  of  the  author  and  50  years  ;  in  Belgium, 
life  and  20  years  ;  in  Germany,  life  and  30  years  ;  in  Italy,  life  and 
40  years,  with  a  second  term  of  40  years,  during  which  other  persons 


REPORT   OF  THE   BRITISH   COMMISSION.       223 

than  the  proprietor  may  publish  a  work  on  payment  of  a  royalty  to 
him  ;  in  Russia,  life  and  50  years  ;  in  Spain,  life  and  50  years  ;  in 
Portugal,  life  and  50  years  ;  and  in  Holland,  life  and  20  years. 
These  terms  are  subject  to  sundry  modifications  and  conditions  which 
it  is  unnecessary  for  us  to  enter  into,  but  while  we  consider  it  expe- 
dient that  the  existing  term  of  copyright  should  be  altered,  we  think 
that  the  terms  fixed  by  the  nations  we  have  referred  to  are  in  some 
cases  excessive  and  unnecessary. 

40.  Upon  the  whole  we  suggest  the  term  adopted  by  Germany, 
viz.,  life  and  30  years,  as  most  suitable  for  Your  Majesty's  domin- 
ions. We  are,  however,  of  opinion  that,  in  the  event  of  an  inter- 
national agreement  being  concluded,  by  which  a  common  term  is 
fixed  for  copyright  in  all  countries,  power  should  be  given  to  Your 
Majesty  to  adopt,  by  Order  in  Council,  in  lieu  of  the  above  term  of 
life  and  30  years,  the  term  fixed  by  such  international  arrangement. 

41.  We  further  suggest  that  in  the  case  of  posthumous  and  anony- 
mous works  and  of  encyclopaedias,  the  period  should  be  30  years 
from  the  date  of  deposit  for  the  use  of  the  British  Museum.  In  the 
case  of  anonymous  works  the  author  should  be  allowed,  during  the 
period  of  30  years,  by  printing  an  edition  with  his  name  attached,  to 
secure  the  full  term  of  life  and  30  years. 

42.  Should  these  suggestions  be  adopted,  we  think  that  it  would 
be  desirable  that  copyrights  in  existence  at  the  time  of  the  passing  of 
the  Act  should  be  extended,  subject  to  a  proviso  like  the  one  con- 
tained in  section  4  of  the  Copyright  Act  of  1842,  guarding  against 
the  alteration  of  existing  contracts  between  authors  and  publishers. 
In  no  case  should  the  duration  of  existing  copyrights  be  abbreviated. 

43.  One  other  point  relating  to  the  term  of  copyright  remains,  to 
which  we  wish  to  call  attention.  It  has  been  provided  that  in  the 
case  of  encyclopaedias,  reviews,  magazines,  periodical  works,  and 
works  published  in  a  series  of  books,  or  parts,  for  which  various  per- 
sons are  employed  by  the  proprietor  to  write  articles, — if  the  articles 
are,  written  and  paid  for  on  the  terms  that  the  copyright  therein  shall 
belong  to  the  proprietor  of  the  work,  the  same  rights  shall  belong  to 
him  as  to  the  author  of  a  book,  except  in  one  particular,  in  which 
particular  a  difference  is  made  between  essays,  articles,  or  portions 
of  reviews,  magazines,  or  other  periodical  works  of  a  like  nature  and 
articles  in  encyclopaedias.  In  the  case  of  the  former  (but  not  of 
encyclopaedias)  a  right  of  separate  publication  of  the  articles  reverts 
to  the  author  after  2S  years  for  the  remainder  of  the  period  of  copy- 


224  THE   QUESTION   OF   COPYRIGHT. 

right,  and  during  the  28  years  the  proprietor  of  the  work  cannot  pub- 
lish the  articles  separately  without  the  consent  of  the  author  or  his 
assigns.  Authors  can,  however,  by  contract  reserve  to  themselves 
during  the  28  years  a  right  of  separate  publication  of  the  articles  they 
write,  in  which  case  the  copyright  in  the  separate  publication  belongs 
to  them,  but  without  prejudice  to  the  rights  of  the  proprietor  of  the 
magazine  or  other  periodical.  We  think  some  modification  in  this 
provision  is  required  as  regards  the  time  when  the  right  of  separate 
publication  should  revert  to  the  authors  of  the  articles,  and  that  three 
years  should  be  substituted  for  twenty-eight.  As  we  have  reason  to 
believe  that  proprietors  of  periodicals  have  not,  as  a  rule,  insisted  on 
the  right  given  them  by  the  existing  law,  we  think  there  would  be 
no  objection  to  making  this  provision  retroactive. 

44.  It  has  been  pointed  out  to  us  that,  under  the  existing  law,  the 
author  of  an  article  in  a  magazine  or  periodical  cannot,  until  the 
right  of  separate  publication  reverts  to  him,  take  proceedings  to  pre- 
vent piracy  of  his  work  ;  so  that,  unless  the  proprietor  of  the  maga- 
zine or  periodical  be  willing  to  take  such  proceedings  (which  may 
very  likely  not  be  the  case  when  the  right  of  the  author  is  about  to 
revive),  the  result  would  practically  be  to  deprive  the  author  of  the 
benefit  of  the  right  reserved  to  him.  We  recommend,  therefore,  that 
during  the  period  before  the  right  of  separate  publication  reverts  to 
the  author,  he  should  be  entitled,  as  well  as  the  proprietor  of  the 
magazine  or  periodical,  to  prevent  an  unauthorized  separate  publica- 
tion. 

University  Copyright. 

45.  In  connection  with  the  subject  of  the  term  of  copyright  we 
have  to  notice  the  perpetual  copyrights  possessed  by  certain  universi- 
ties and  schools,  which  form  exceptions  to  the  general  law  by  which 
copyright  is  limited  to  a  definite  number  of  years. 

46.  We  find  that  the  Universities  of  Oxford,  Cambridge,  Edin- 
burgh, Glasgow,  St.  Andrews,  and  Aberdeen,  each  college  or  house 
of  learning  at  the  Universities  of  Oxford  and  Cambridge,  Trinity 
College,  Dublin,  and  the  colleges  of  Eton,  Westminster,  and  Win- 
chester have  forever  the  sole  liberty  of  printing  and  reprinting  all 
such  books  as  have  been,  or  hereafter  may  be  bequeathed  or  given 
to  them,  or  in  trust  for  them  by  the  authors  thereof,  or  by  their  rep- 
resentatives, unless  they  were  given  or  bequeathed  for  a  limited  term. 

47.  To  ascertain  the  value  of  this  exceptional  right  to  the  institu- 


REPORT   OF   THE   BRITISH    COMMISSION.       225 

tions  interested,  we  communicated  with  the  authorities  at  the  Uni- 
versities of  Oxford  and  Cambridge,  and  asked  the  number  of  copy- 
rights possessed  by  them  in  perpetuity  under  this  provision  of  the 
law.  We  found  that  the  University  of  Oxford  possesses  six  copy- 
rights and  that  the  University  of  Cambridge  has  none. 

48.  This  fact  shows  that  the  privilege,  which  is  by  no  means  of 
recent  origin,  is  of  very  little  real  value,  and  as  it  is  undesirable  to 
continue  any  special  and  unusual  kinds  of  copyright,  we  are  of 
opinion  that  this  exceptional  privilege  should  be  omitted  from  the 
future  law.  We  do  not,  however,  think  it  would  be  right  to  deprive 
the  institutions  above  named  of  the  copyrights  they  already  possess, 
without  their  consent,  but  should  they  be  retained,  we  suggest  that 
the  universities  and  other  institutions  should  be  placed  upon  the  same 
footing  as  regards  the  protection  of  their  copyrights  as  other  copy- 
right owners,  and  that  the  exceptional  penalties  and  remedies  given 
by  the  Act  which  was  passed  in  the  15th  year  of  the  reign  of  his  late 
Majesty  King  George  III.  should  be  repealed. 

Place  of  Publication. 

49.  We  now  desire  to  call  attention  to  the  place  of  publication,  as 
it  affects  the  obtaining  of  copyright  in  the  United  Kingdom. 

50.  And  first  we  have  to  notice  publication  in  the  colonies,  as  to 
which  it  appears  the  present  state  of  the  law  is  anomalous  and 
unsatisfactory. 

51.  Copyright  in  the  United  Kingdom  extends  to  every  part  of  the 
British  dominions,  but  if  a  book  be  published  first  in  any  part  of  the 
British  dominions  other  than  the  United  Kingdom,  the  author  cannot 
obtain  copyright,  either  in  the  United  Kingdom  or  in  any  of  the 
colonies,  unless  there  is  some  local  law  in  the  colony  of  publication 
under  which  he  can  obtain  it  within  the  limits  of  that  colony. 

52.  It  is  obvious  that  if  by  Imperial  Law  copyright  is  to  be 
enforced  in  the  colonies,  while  at  the  same  time  first  publication  in 
the  United  Kingdom  is  a  condition  of  obtaining  it,  the  colonies  are 
not  treated  on  fair  and  equal  terms,  and  that  there  is  just  ground  of 
complaint  on  the  part  of  colonial  authors  and  publishers. 

53.  In  truth  a  colonial  author  is  placed  even  in  a  worse  position 
than  a  foreign  author  who  is  the  subject  of  a  country  with  which  we 
have  an  international  copyright  convention.  For  example,  a  French 
author  can  publish  in  France,  and  subsequently,  upon  the  per- 
formance of  certain  conditions,  such  as  registration,  secure  himself 

15 


226  THE   QUESTION   OF   COPYRIGHT. 

against  piracy  of  his  work  throughout  the  British  Empire,  while  the 
colonial  author  can  neither  secure  his  property  in  the  United  King- 
dom nor  France,  unless  he  first  publishes  in  the  United  Kingdom. 

54.  Three  ways  of  remedying  this  inequality  present  themselves  : 
either,  (1)  the  Imperial  Act,  and  the  rights  under  it,  may  be  limited 
to  the  United  Kingdom  ;  or,  (2)  the  same  rights  throughout  Your 
Majesty's  dominions  may  be  given  to  British  subjects,  whether  the 
work  is  first  published  in  the  United  Kingdom  or  in  any  colony  ;  or, 
(3)  the  benefits  of  Imperial  copyright  may  be  freely  thrown  open  to 
all  authors,  without  regard  to  nationality  or  prior  publication  else- 
where, who  publish  within  the  British  dominions. 

55.  Upon  consideration  we  are  not  disposed  to  recommend  the 
first  alternative.  If  the  subject  had  now  to  be  approached  for  the 
first  time,  it  might  be  thought  desirable,  looking  to  the  existing 
relations  between  the  greater  colonies  and  the  mother  country,  to 
confine  the  right  of  property  in  a  work  to  the  country  where  it  is 
first  published,  leaving  the  different  colonies  to  legislate  on  the  sub- 
ject, and  the  copyright  proprietor  to  secure,  should  he  think  fit,  copy- 
right in  any  other  part  of  Your  Majesty's  dominions,  by  complying 
with  the  requirements  of  the  law  of  such  place. 

56.  It  has  been  suggested  further,  that  if  copyright  were  thus 
limited,  conventions  might  be  made  with  the  colonies  similar  to  those 
made  with  foreign  nations,  providing  in  effect  that  publication  in  a 
colony  should  secure  the  same  right  to  the  proprietor  of  copyright  as 
publication  in  the  mother  country.  This  would  not,  however,  give 
a  colonial  author  copyright  elsewhere  than  in  the  United  Kingdom, 
and  in  such  other  colonies  as  might  agree  to  be  bound  by  such  con- 
ventions ;  and  it  may  be  questioned  whether  some  of  the  colonies 
would  not  decline  to  enter  into  such  conventions.  The  temptation 
to  publish  cheap  copies  of  English  copyright  works  without  payment 
to  the  author  would  be  very  great,  as  it  has  proved  to  be  in  the 
United  States.  Upon  this  point  we  need  only  refer  to  Mr.  Morrill's 
Official  Report  to  the  Senate  of  the  United  States,  which  will  be 
found  at  page  10  of  the  Parliamentary  Paper  of  July,  1874,  upon 
Colonial  Copyright. 

57.  But  we  conceive  that  the  existing  anomalies  may  be  removed, 
and  the  interests  of  the  colonists  preserved,  without  restricting  the 
existing  rights  of  British  authors  ;  and  we  submit  further  that  the 
subject  is  one  of  such  importance  that  it  may  fairly  continue  to  be 
treated,  in  some  of  its  aspects,  from  an  imperial,  rather  than  from  a 


REPORT   OF   THE   BRITISH   COMMISSION.       227 

local  point  of  view,  and  that  the  colonies  should  be  dealt  with  as 
integral  parts  of  the  empire,  rather  than  placed  on  the  footing  of 
foreign  nations.  It  may  be  added  that  foreign  nations  with  whom 
we  have  made  conventions  might  possibly  have  ground  of  com- 
plaint, if  this  limitation  of  the  Imperial  Act  were  made  without  their 
assent. 

58.  We  recommend,  therefore,  generally,  that  where  a  work  has 
been  first  published  in  any  one  of  Your  Majesty's  possessions,  the 
proprietor  of  such  work  shall  be  entitled  to  the  same  copyright,  and 
to  the  same  benefits,  remedies,  and  privileges  in  respect  of  such 
work,  as  he  would  have  been  entitled  to  under  the  existing  Im- 
perial Act,  if  the  work  had  been  first  published  in  the  United 
Kingdom. 

59.  With  regard  to  publication  in  foreign  states  the  law  now  is 
that,  except  under  treaty,  no  copyright  can  be  obtained  if  a  book  has 
been  published  in  any  foreign  country  before  being  published  in  the 
United  Kingdom,  but  it  is  doubtful  whether  contemporaneous  pub- 
lication in  this  and  a  foreign  country  would  prevent  the  acquisition 
of  copyright  here. 

60.  It  is  a  grave  question  whether  it  is  desirable  that  the  condi- 
tion requiring  first  publication  in  this  country  should  continue,  and 
whether  the  reason  advanced  for  this  condition,  namely,  that  it  is 
advantageous  to  this  country  that  works  should  be  first  published 
here,  outweighs  the  hardships  that  may  be  inflicted  upon  British 
authors  by  preventing  them  from  availing  themselves  of  arrange- 
ments which  they  might  otherwise  make  with  foreign  or  colonial 
publishers. 

61.  We  have  come  to  the  conclusion  that  a  British  author,  who 
publishes  a  work  out  of  the  British  dominions,  should  not  be  pre- 
vented thereby  from  obtaining  copyright  within  them  by  a  subse- 
quent publication  therein.  Yet  we  think  that  such  republication 
ought  to  take  place  within  three  years  of  the  first  publication.  And 
we  may  add,  that  we  think  the  law  should  be  the  same  with  reference 
to  dramatic  pieces  and  musical  compositions  first  performed  out  of 
Your  Majesty's  dominions,  even  though  they  are  not  printed  and 
published  ; — in  other  words,  that  first  performance  in  a  foreign 
country  should  not  injure  the  dramatic  right  in  this  country.  It  has 
been  decided  under  the  19th  section  of  the  International  Copyright 
Act,  that  the  writer  of  a  drama  loses  his  exclusive  right  to  the  per- 
formance of  his  drama  here  in  England,  if  it  has  been  first  performed 


228  THE   QUESTION   OF   COPYRIGHT. 

abroad  ;  that  is  to  say,  representation  has  been  held  to  be  a  pub- 
lication. We  see  no  reason  why  the  rule  which  may  be  finally 
determined  upon  with  reference  to  first  publication  of  books  should 
not  apply  to  first  representation  of  dramatic  pieces.  The  evidence 
shows  how  hardly  the  present  law  presses  upon  British  dramatic 
authors. 

62.  As  to  aliens,  although  we  would  give  them  the  same  rights 
as  British  subjects  if  they  first  publish  their  works  in  the  British 
dominions,  it  is  obvious  that  the  same  reason  does  not  exist  for  giving 
them  copyright  if  they  do  not  bring  their  books  first  to  our  market  ; 
and  we  therefore  recommend  that  aliens,  unless  domiciled  in  Your 
Majesty's  dominions,  should  only  be  entitled  to  copyright  for  works 
first  published  in  those  dominions.  It  is  to  be  borne  in  mind  that, 
even  though  aliens  may  be  deprived  of  British  copyright  by  first  pub- 
lication abroad,  they  may  still  obtain  it  in  many  cases  by  means  of 
treaties. 

Persons  capable  of  obtaining  Copyright. 

63.  With  regard  to  the  persons  who  are  capable  of  obtaining  im- 
perial copyright  in  Your  Majesty's  dominions,  as  distinguished  from 
international  copyright  under  treaty,  we  find  that,  according  to  the 
existing  law,  the  author  in  order  to  obtain  copyright  must  be  either — 

(a.)  A  natural-born  or  naturalized  subject  of  Your  Majesty,  in 
which  case  the  place  of  residence  at  the  time  of  the  publica- 
tion of  the  book  is  immaterial  ;  or 

(b.)  A  person  who,  at  the  time  of  the  publication  of  the  book  in 
which  copyright  is  to  be  obtained,  owes  local  or  temporary 
allegiance  to  Your  Majesty,  by  residing  at  that  time  in  some 
part  of  Your  Majesty's  dominions. 

64.  Besides  these  it  is  probable,  but  not  certain,  that  an  alien 
friend  who  first  publishes  a  book  in  the  United  Kingdom,  even 
though  resident  out  of  Your  Majesty's  dominions,  acquires  copy- 
right therein.  We  think  this  doubt  should  be  set  at  rest,  and  that, 
subject  to  our  previous  recommendation  as  to  place  of  publication 
by  aliens  not  domiciled  in  Your  Majesty's  dominions,  the  benefit 
of  the  copyright  laws  should  extend  to  all  British  subjects  and  aliens 
alike. 

Immoral,  Irreligious ,  Seditious,  and  Libelous  Works. 

65.  Our  attention    has,  during  the  course  of   our   inquiry,  been 


REPORT   OF   THE   BRITISH    COMMISSION.       229 

called  to  the  case  of  books  which  are  of  an  immoral,  irreligious,  sedi- 
tious, or  libelous  character.  The  present  law  is  that  no  copyright 
exists  in  such  works,  or  in  any  book  which  professes  to  be  what 
it  is  not,  in  such  a  manner  as  to  be  a  fraud  upon  the  purchasers 
thereof. 

66.  The  difficulty  that  arises  in  such  cases  is,  that  as  the  author  is 
deprived  of  copyright,  he  cannot  stop  republication  by  other  persons  ; 
and  thus,  unless  there  be  a  prosecution  upon  public  grounds  the  evil 
is  allowed  to  extend,  instead  of  being  checked  by  the  only  person 
who  has  any  private  interest  in  stopping  its  extension  by  others.  To 
grant  copyright,  however,  in  such  works  is  out  of  the  question,  as 
this  would  be  to  sanction  and  protect  immorality,  irreligion,  libels, 
and  other  matters  which  it  is  against  the  policy  of  the  law  to  encour- 
age. The  subject,  however,  really  belongs  more  properly  to  the 
criminal  law  than  to  the  law  relating  to  copyright :  and  we  therefore 
do  not  make  any  suggestion  with  regard  to  it. 

Abridgments  of  Books. 

67.  Questions  frequently  arise,  with  regard  to  literary  works,  as  to 
what  is  a  fair  use  of  the  works  of  other  authors  in  the  compilation  of 
books.  In  the  majority  of  cases  these  are  questions  that  can  only 
be  decided,  when  they  arise,  by  the  proper  legal  tribunals,  and  no 
principle  which  we  can  lay  down,  or  which  could  be  defined  by  the 
Legislature,  could  govern  all  cases  that  occur.  There  is  one  form 
of  use  of  the  works  of  others,  however,  to  which  we  wish  specially 
to  draw  attention,  as  being  capable  of  some  legislative  control  in  a 
direction  we  think  desirable.     We  refer  to  abridgments. 

68.  At  present  an  abridgment  mayor  may  not  be  an  infringement 
of  copyright,  according  to  the  use  made  of  the  original  work  and  the 
extent  to  which  the  latter  is  merely  copied  into  the  abridgment ;  but 
even  though  an  abridgment  may  be  so  framed  as  to  escape  being  a 
piracy,  still  it  is  capable  of  doing  great  harm  to  the  author  of  the 
original  work  by  interfering  with  his  market ;  and  it  is  the  more 
likely  to  interfere  with  that  market  and  injure  the  sale  of  the  origi- 
nal work  if,  as  is  frequently  the  case,  it  bears  in  its  title  the  name 
of  the  original  author. 

69.  We  think  this  should  be  prevented,  and,  upon  the  whole 
we  recommend,  that  no  abridgments  of  copyright  works  should  be 
allowed  during  the  term  of  copyright,  without  the  consent  of  the 
owner  of  the  copyright. 


230  THE   QUESTION   OF   COPYRIGHT. 

Dramatic  Pieces  and  Musical  Compositions. 

70.  Dramatic  pieces  and  musical  compositions,  though  in  some 
respects  differing,  are  yet  so  similar  that  we  may  couple  them  to- 
gether for  the  purposes  of  this  Report. 

71.  We  have  carefully  considered  the  statute  law  now  in  force 
with  reference  to  music  and  the  drama  ;  but  from  the  way  in  which 
certain  Acts  of  Parliament  have  been  framed  and  incorporated  by 
reference,  considerable  doubt  arises  in  our  minds  on  various  impor- 
tant points  connected  with  these  subjects. 

72.  It  may  be  convenient,  however,  before  referring  to  them  more 
particularly,  to  notice  a  difference  that  exists  between  books  and 
musical  and  dramatic  works.  While  in  books  there  is  only  one 
copyright,  in  musical  and  dramatic  works  there  are  two,  namely, 
the  right  of  printed  publication  and  the  right  of  public  performance. 

73.  These  rights  are  essentially  different  and  distinct,  and  we  find 
that  many  plays  and  musical  pieces  are  publicly  performed  without 
being  published  in  the  form  of  books,  and  thus  the  acting  or  dra- 
matic copyright  is  in  force,  while  as  to  literary  copyright  such  plays 
and  pieces  retain  the  character  of  unpublished  manuscripts.  Music 
printed  and  published  becomes  a  book  for  the  purpose  of  the  literary 
copyright,  and  so,  we  presume,  does  a  play  ;  but  it  is  a  question  what 
becomes  of  the  performing  copyright  on  the  publication  of  the  work 
as  a  book  ;  and  there  is  a  further  question,  whether  the  performing 
copyright  can  be  gained  at  all,  if  the  piece  is  printed  and  published 
as  a  book  before  being  publicly  performed. 

74.  With  regard  to  the  duration  of  copyright  in  dramatic  pieces, 
and  musical  compositions,  we  recommend  that  both  the  performing 
right  and  the  literary  right  should  be  the  same  as  for  books. 

75.  We  further  propose,  in  order  to  avoid  the  disunion  between 
the  literary  and  the  performing  rights  in  musical  compositions  and 
dramatic  pieces,  that  the  printed  publication  of  such  works  should 
give  dramatic  or  performing  rights,  and  that  public  performance 
should  give  literary  copyright.  For  a  similar  reason  it  would  be  de- 
sirable that  the  author  of  the  words  of  songs,  as  distinguished  from 
the  music,  should  have  no  copyright  in  representation  or  publication 
with  the  music,  except  by  special  agreement. 

Dramatization  of  Novels. 

76.  With  reference  to  the  drama,  our  attention  has  been  directed 
to  a  practice,  now  very  common,  of  taking  a  novel  and  turning  its 


REPORT   OF  THE   BRITISH    COMMISSION.       23 1 

contents  into  a  play  for  stage  purposes,  without  the  consent  of  the 
author  or  owner  of  the  copyright.  The  same  thing  may  be  done 
with  works  of  other  kinds  if  adapted  for  the  purpose,  but  inasmuch 
as  novels  are  more  suitable  for  this  practice  than  other  works,  the 
practice  has  acquired  the  designation  of  dramatization  of  novels. 
The  extent  to  which  novels  may  be  used  for  this  purpose  varies. 
Stories  have  been  written  in  a  form  adapted  to  stage  representation 
almost  without  change  ;  sometimes  certain  parts  and  passages  of 
novels  are  put  bodily  into  the  play,  while  the  bulk  of  the  play  is  origi- 
nal matter  ;  and  at  other  times  the  plot  of  the  novel  is  taken  as  the 
basis  of  a  play,  the  dialogue  being  altogether  original. 

77.  Whatever  may  be  the  precise  form  of  the  dramatization,  the 
practice  has  given  rise  to  much  complaint,  and  considerable  loss, 
both  in  money  and  reputation,  is  alleged  to  have  been  inflicted  upon 
novelists.  The  author's  pecuniary  injury  consists  in  his  failing  to 
obtain  the  profit  he  might  receive  if  dramatization  could  not  take 
place  without  his  consent.  He  may  be  injured  in  reputation  if  an 
erroneous  impression  is  given  of  his  book. 

78.  In  addition  to  these  complaints  it  has  been  pressed  upon  us 
that  it  is  only  just  that  an  author  should  be  entitled  to  the  full 
amount  of  profit  which  he  can  derive  from  his  own  creation  ; — that 
the  product  of  a  man's  brain  ought  to  be  his  own  for  all  purposes  ; — 
and  that  it  is  unjust,  when  he  has  expended  his  invention  and  labor 
in  the  composition  of  a  story,  that  another  man  should  be  able  to 
reap  part  of  the  harvest. 

79.  On  the  other  hand,  it  has  been  argued  that  the  principle  of 
copyright  does  not  prevent  the  free  use  of  the  ideas  contained  in  the 
original  work,  though  it  protects  the  special  form  in  which  those 
ideas  are  embodied  ; — that  a  change  in  the  existing  law  would  lead 
to  endless  litigation  ; — and  that  it  would  work  to  the  disadvantage 
both  of  the  author  and  the  public.  Upon  these  grounds,  or  some  of 
them,  a  bill,  introduced  by  Lord  Lyttleton  in  1866  and  supported  by 
Lord  Stanhope,  was  defeated. 

80.  We  have  fully  considered  all  these  points,  and  have  come  to 
the  conclusion  that  the  right  of  dramatizing  a  novel  or  other  work 
should  be  reserved  to  the  author.  This  change  would  assimilate  our 
law  to  that  of  France  and  the  United  States,  where  the  author's 
right  in  this  respect  is  fully  protected. 

81.  Were  this  recommendation  adopted,  a  further  question  would 
arise,  as  to  the  time  during  which  this  right  should  be  vested  in  the 


232  THE   QUESTION   OF   COPYRIGHT. 

author,  and,  in  the  event  of  his  not  choosing  to  dramatize  his  novel, 
whether  other  persons  should  be  debarred  from  making  use  of  the 
story  he  has  given  to  the  world.  We  are  disposed  to  think  that  the 
right  of  dramatization  should  be  co-extensive  with  the  copyright.  It 
has  been  suggested,  in  the  interest  of  the  public,  that  a  term,  say  of 
three  or  five  years,  or  even  more,  should  be  allowed  to  the  author 
within  which  he  should  have  the  sole  right  to  dramatize  his  novel, 
and  that  it  should  be  then  open  to  any  one  to  dramatize  it.  The 
benefit,  however,  to  the  public  in  having  a  story  represented  on  the 
stage  does  not  appear  to  us  to  be  sufficient  to  outweigh  the  con- 
venience of  making  the  right  of  dramatizing  uniform  in  its  incidents 

with  other  copyright. 

Lectures. 

82.  Lectures  are  peculiar  in  their  character,  and  differ  from  books, 
inasmuch  as,  though  they  are  made  public  by  delivery,  they  have 
not  necessarily  a  visible  form  capable  of  being  copied.  Nevertheless 
it  has  been  thought  right  by  the  legislature  in  recent  years  to  afford 
them  the  protection  of  copyright,  and,  considering  the  valuable 
character  of  many  lectures,  it  is  our  opinion  that  such  protection 
should  not  only  be  continued,  subject  to  certain  changes  in  the  law, 
but  extended.  Although  lectures  are  not  always  capable  of  being 
copied,  because  not  reduced  to  writing,  many  lectures  written  for 
the  purpose  of  delivery  are  not  published,  and  many  are  written 
that  the  matter  of  them  may  be  preserved,  or  that  they  may  be  capa- 
ble of  delivery  in  the  same  form  on  other  occasions.  Moreover, 
lectures,  though  not  put  in  writing  by  the  author,  may  be  taken 
down  in  shorthand,  and  thus  published  or  re-delivered  by  other  per- 
sons. The  present  Act  of  Parliament,  which  gives  copyright  in 
lectures,  seems  only  to  contemplate  one  kind  of  copyright,  namely, 
that  of  printed  publication,  whereas  it  is  obvious  that  for  their  entire 
protection  lectures  require  copyright  of  two  kinds,  the  one  to  protect 
them  from  printed  publication  by  unauthorized  persons,  the  other  to 
protect  them  from  re-delivery. 

83.  The  present  law  is  that  the  author  of  any  lecture,  or  his  as- 
signee, may  reserve  to  himself  the  sole  right  of  publishing  it,  by 
giving  two  days'  notice  of  the  intended  delivery  to  two  justices  of  the 
peace  living  within  five  miles  from  the  place  where  the  lecture  is  to 
be  delivered,  unless  the  lecture  is  delivered  in  any  university,  public 
school,  or  college,  or  on  any  public  foundation,  or  by  any  person  in 
virtue   of  or   according  to  any  gift,  endowment,  or  foundation,  in 


REPORT   OF   THE   BRITISH   COMMISSION.        233 

which  cases  no  copyright  is  given  on  any  condition.  If  any  person 
obtains  a  copy  of  a  protected  lecture  by  taking  it  down,  and  publishes 
it  without  the  leave  of  the  author,  or  sells  copies,  he  is  to  forfeit  the 
copies,  and  id.  for  every  sheet  found  in  his  custody.  This  law  is 
designed  merely  to  prevent  unauthorized  publication  of  lectures  by 
printing,  but  as  has  been  observed  it  does  not  prohibit  unauthorized 
re-delivery. 

84.  We  think  that  the  author's  copyright  should  extend  to  prevent 
re-delivery  of  a  lecture  without  leave  as  well  as  publication  by  print- 
ing, though  this  prohibition,  as  to  re-delivery,  should  not  extend  to 
lectures  which  have  been  printed  and  published.  We  also  recom- 
mend that  the  term  of  copyright  in  lectures  should  be  the  same  as  in 
books,  namely,  the  life  of  the  author  and  30  years  after  his  death. 

85.  In  the  course  of  our  inquiry  it  has  been  remarked  that,  in  the 
case  of  popular  lectures,  it  is  the  practice  of  newspaper  proprietors 
to  send  reporters  to  take  notes  of  the  lectures  for  publication  in  their 
newspapers,  and  that,  unless  this  practice  is  protected,  it  will  become 
unlawful.  It  does  not  seem  to  us  desirable  that  this  practice  should 
be  prevented,  but  on  the  other  hand  the  author's  copyright  should 
not  in  any  way  be  prejudiced  by  his  lectures  being  reported  in  a 
newspaper.  The  author  should  have  some  sort  of  control  so  as  to 
prevent  such  publication  if  he  wishes  to  do  so  ;  and  we  therefore 
suggest  that  though  the  author  should  have  the  sole  right  of  publica- 
tion, he  should  be  presumed  to  give  permission  to  newspaper  pro- 
prietors to  take  notes  and  report  his  lecture,  unless,  before  or  at  the 
time  when  the  lecture  is  delivered,  he  gives  notice  that  he  prohibits 
reporting. 

86.  By  the  present  law,  as  above  stated,  a  condition  is  imposed  of 
giving  notice  to  two  justices.  Without  entering  into  the  origin  of 
this  provision  we  find  that  it  is  little  known  and  probably  never  or 
very  seldom  acted  upon  ;  so  that  the  statutory  copyright  is  practically 
never  or  seldom  acquired.  We  therefore  suggest,  that  this  provision 
should  be  omitted  from  any  future  law. 

87.  We  do  not  suggest  any  interference  with  the  exception  made 
in  the  Act  as  to  lectures  delivered  in  universities  and  elsewhere, 
wherein  no  statutory  copyright  can  be  acquired. 

Newspapers. 

88.  Much  doubt  appears  to  exist  in  consequence  of  several  con- 
flicting legal  decisions  whether  there  is  any  copyright  in  newspapers. 


234  THE   QUESTION  OF  COPYRIGHT. 

We  think  it  right  to  draw  Your  Majesty's  attention  to  the  defect, 
and  to  suggest  that  in  any  future  legislation,  it  may  be  remedied  by 
denning  what  parts  of  a  newspaper  may  be  considered  copyright,  by 
distinguishing  between  announcements  of  facts  and  communications 
of  a  literary  character. 

Fine  Arts. 

89.  The  next  subjects  for  our  consideration  were  the  various 
branches  of  the  fine  arts,  consisting  of  engravings  and  works  of  that 
class,  paintings,  drawings,  and  photographs,  and  lastly,  sculpture. 

90.  It  might  be  supposed  that  the  law  relating  to  engravings, 
etchings,  prints,  lithographs,  paintings,  drawings,  and  photographs 
would  be  the  same  so  far  as  those  matters  are  capable  of  being  reg- 
ulated by  the  same  law  ;  but  such  is  not  the  case.  Until  the  25th 
and  26th  years  of  Your  Majesty's  reign,  there  was  no  Act  of  Parlia- 
ment by  which  copyright  was  given  for  paintings,  drawings,  and 
photographs,  while  engravings,  etchings,  and  prints  were  protected 
so  long  ago  as  the  eighth  year  of  the  reign  of  His  late  Majesty  King 
George  II.  Though  engravings,  etchings,  and  prints  were  thus  pro- 
vided for,  a  doubt  arose  in  process  of  time  whether  the  Acts  then  in 
force  would  apply  to  lithographs  and  other  recently  invented  modes 
of  printing  pictures,  and  it  was  therefore  declared,  by  an  Act  passed 
in  the  15th  and  16th  years  of  Your  Majesty's  reign,  that  the  earlier 
Acts  were  intended  to  include  prints  taken  by  lithography  or  any 
other  mechanical  process  by  which  prints  or  impressions  of  draw- 
ings or  designs  are  capable  of  being  multiplied  indefinitely.  It 
might  be  questioned  whether  the  language  of  this  Act  would  not 
embrace  photography,  but  it  seems  to  have  been  assumed  that  it 
would  not,  for  in  the  25th  and  26th  years  of  Your  Majesty's  reign, 
an  Act  was  passed  to  give  copyright  in  paintings,  drawings,  and 
photographs,  and  the  right  thus  given  was  placed  on  an  entirely 
different  footing  and  made  subject  to  different  conditions  from  those 
to  which  engravings,  etchings,  lithographs,  and  prints  are  sub- 
ject. 

91.  There  is  at  present  great  diversity  in  the  law  as  to  the  dura- 
tion of  copyright  in  works  of  fine  art.  For  engravings  and  similar 
works  the  term  is  28  years  from  publication  ;  for  paintings,  draw- 
ings, and  photographs,  the  life  of  the  artist  and  seven  years  ;  and 
for  sculpture  14  years  from  the  first  putting  forth  or  publication  of 
the  work,  and  if  the  sculptor  is  living  at  the  end  of  that  time,  for  a 


REPORT   OF  THE   BRITISH    COMMISSION.       235 

second  term  of  14  years.     We  do  not  think  it  desirable  that  these 
distinctions  should  continue. 

92.  We  understand  that  the  reason  for  making  the  term  in  the 
case  of  paintings  the  life  of  the  artist  and  seven  years,  was  to  avoid 
the  necessity  of  proving  the  date  of  publication,  which  is,  it  is  said, 
in  the  case  of  a  painting  frequently  impossible.  There  would  be 
equal  difficulty,  it  is  reasonable  to  suppose,  in  proving  the  date  of 
publication  of  sculpture,  and  we  have  already  shown  that  it  exists, 
to  a  minor  degree,  in  the  case  of  all  literary  works.  We  think  it 
desirable  as  far  as  possible  to  get  rid  of  this  difficulty.  By  adopting 
as  the  term  the  life  of  the  artist  and  a  certain  time  after  death,  the 
result  will  be  attained. 

93.  Sculpture,  though  a  branch  of  the  fine  arts,  is  essentially  dif- 
ferent in  many  points  from  paintings,  engravings,  and  works  of  that 
class  ;  nevertheless  we  purpose  to  deal  with  them  concurrently,  so 
far  as  the  subjects  permit. 

94.  It  will  have  been  observed  that  wherever  it  is  possible  to  place 
on  the  same  footing  the  various  subjects  of  copyright  of  which  we 
have  treated  in  the  earlier  part  of  this  Report,  we  have  recommended 
that  the  law  should  be  assimilated  ;  we  propose  that  all  the  subjects 
of  fine  art  shall  be  dealt  with  on  the  same  principle  so  far  as  they 
are  capable  of  that  treatment. 

95.  We  therefore  propose  that  the  term  of  copyright  for  all  works 
of  fine  art,  other  than  photographs,  shall  be  the  same  as  for  books, 
music,  and  the  drama,  namely,  the  life  of  the  artist  and  30  years 
after  his  death. 

96.  We  further  recommend  that  it  should  be  open  equally  to  sub- 
jects of  Your  Majesty  and  aliens  to  obtain  copyright  in  works  of  fine 
art,  but  aliens,  unless  domiciled  in  Your  Majesty's  dominions,  should 
only  be  entitled  to  copyright  for  works  first  published  in  those 
dominions. 

Sculpture. 

97.  As  to  sculpture  we  have  had  to  consider  by  what  acts  the 
sculptor's  copyright  ought  to  be  deemed  to  have  been  infringed. 
Sculpture  may  be  copied  in  various  ways,  not  only  by  sculpture  and 
casting,  but  by  engraving,  drawing,  and  photography  ;  and  since 
the  rise  of  photography,  the  copying  of  sculpture  by  that  means  has 
become  a  considerable  business.  The  question  has  therefore  been 
brought  before  us  whether  copying  by  other  means  than  sculpture 
or  casting  ought  not  to  be  considered  piracy. 


236  THE   QUESTION   OF   COPYRIGHT. 

98.  A  material  item  in  the  consideration  of  this  question  is  the 
injury  likely  to  be  inflicted  on  the  sculptor.  The  principal  witness 
on  this  point,  Mr.  Woolner,  R.A.,  though  he  thought  that  the  pho- 
tographing of  sculpture  would  probably  operate  rather  as  an  adver- 
tisement in  the  sculptor's  favor  than  to  his  detriment,  expressed  a 
wish  that  the  law  should  give  a  sculptor  protection  against  copying 
by  means  of  drawing  or  engraving  ;  and  he  was  of  opinion  that 
incorrect  copying  by  drawing  or  engraving  might  be  very  prejudicial 
to  the  sculptor's  reputation.  But  besides  this,  there  is  the  question 
whether  a  sculptor  ought  not  to  be  entitled  to  any  profit  to  be  made 
by  allowing  his  works  to  be  photographed  or  otherwise  copied. 

99.  Upon  the  whole  we  are  disposed  to  think  that  eveiy  form  of 
copy,  whether  by  sculpture,  modeling,  photography,  drawing,  en- 
graving, or  otherwise,  should  be  included  in  the  protection  of  copy- 
right. It  might  be  provided  that  the  copying  of  a  scene  in  which  a 
piece  of  sculpture  happened  to  form  an  object  should  not  be  deemed 
an  infringement,  unless  the  sculpture  should  be  the  principal  object, 
or  unless  the  chief  purpose  of  the  picture  should  be  to  exhibit  the 
sculpture. 

100.  It  was  also  suggested  that  copyists  of  antique  works  ought  to 
be  protected  by  copyright  so  far  as  their  own  copies  are  concerned. 
Many  persons  spend  months  in  copying  ancient  statues,  and  the 
copies  become  as  valuable  to  the  sculptors  as  if  they  were  original 
works.  It  may  be  doubted  whether  the  case  does  not  already  fall 
within  the  Sculpture  Act,  but  we  recommend  that  such  doubts  should 
be  removed,  and,  that  sculptors  who  copy  from  statues  in  which  no 
copyright  exists  should  have  copyright  in  their  own  copies.  Such 
copyright  should  not,  of  course,  extend  to  prevent  other  persons 
making  copies  of  the  original  work. 

Paintings. — Assignment  of  Copyright  on  Sale  of  Pictures. 

101.  The  most  difficult  question  with  relation  to  fine  arts  which 
we  have  had  to  consider,  is  to  whom  the  copyright  should  belong  on 
sale  of  a  painting  ;  whether  to  the  artist  or  to  the  purchaser  of  the 
picture. 

102.  The  present  law  on  the  subject  is  as  follows  : — The  author 
of  every  original  painting,  drawing,  and  photograph,  and  his  assigns, 
have  the  sole  right  of  copying,  engraving,  and  reproducing  it,  unless 
it  be  sold  or  made  for  a  good  or  valuable  consideration,  in  which 
case  the  artist  cannot  retain  the  copyright,  unless  it  be  expressly 


REPORT   OF   THE   BRITISH    COMMISSION.       237 

reserved  to  him  by  agreement  in  writing,  signed  by  the  vendee,  or 
by  the  person  for  whom  the  work  was  executed  ;  but  the  copyright, 
in  the  absence  of  such  agreement,  belongs  to  the  vendee  or  such 
other  person  ;  but  it  is  also  provided  that  a  vendee  or  assignee  can- 
not get  the  copyright  unless  at  the  time  of  the  sale  an  agreement  in 
writing  signed  by  the  artist  or  person  selling  is  made  to  that  effect. 
The  result  is,  that  if  an  artist  sells  a  picture  without  having  the 
copyright  reserved  to  him  by  written  agreement  he  loses  it,  but  it 
does  not  vest  in  the  purchaser  unless  there  is  an  agreement  signed  in 
his  favor.  If,  therefore,  there  is  no  agreement  in  writing— a  very 
frequent  occurrence — the  copyright  is  altogether  lost  on  a  sale,  but 
if  the  picture  is  painted  on  commission,  instead  of  being  sold  after 
being  painted,  the  copyright  in  the  absence  of  any  agreement  vests 
in  the  person  for  whom  the  picture  is  painted. 

103.  We  have  taken  a  good  deal  of  evidence  with  regard  to  this 
matter.  It  appears  that  the  provision  as  to  pictures  painted  on  com- 
mission was  made  to  prevent  the  unauthorized  copying  of  portraits. 
Some  difficulty,  however,  is  said  to  have  arisen  in  determining  whether 
an  order  or  a  purchase  is  a  commission,  so  as  to  bring  the  picture 
within  such  provision. 

104.  With  regard  to  the  general  question  whether  the  copyright  in 
a  picture  should  in  every  case  remain  with  the  artist  unless  expressly 
sold,  or  whether  it  should  follow  the  picture  unless  expressly  retained, 
the  artists  as  a  body  are  unanimous  in  their  desire  to  have  the  copy- 
right reserved  to  them  by  law. 

105.  It  is  true  that  if  under  the  present  law  an  artist  wishes  to 
retain  the  copyright,  he  can  do  so  by  an  express  stipulation  embodied 
in  an  agreement  signed  by  the  purchaser.  Artists,  however,  say  that 
this  is  practically  useless,  since  the  purchaser  would  look  upon  a 
proposal  for  such  an  agreement  as  intended  to  deprive  him  of  part 
of  the  value  of  his  purchase.  They  therefore  seldom  ask  for  agree- 
ments, preferring  that  the  copyright  shall  drop.  In  that  case  any 
person  who  can  gain  access  to  a  valuable  picture  may  make  and  sell 
copies  of  it  in  defiance  of  both  artist  and  owner. 

106.  It  is  clearly  undesirable  that  copyrights,  which  are  in  many 
cases  of  great  value,  should  be  in  this  way  left  free  to  piracy.  The 
law,  therefore,  should  distinctly  define  to  whom,  in  the  absence  of 
an  agreement,  the  copyright  should  belong. 

107.  In  dealing  with  these  questions  we  have  had  regard  not  only 
to  the  artist's  claims  which  have  been  strongly  advocated  before  us, 


238  THE   QUESTION   OF   COPYRIGHT. 

but  also  to  the  interests  of  the  public,  and  to  the  consideration 
whether  any  distinction  should  be  made  between  pictures  sold  after 
being  painted  and  pictures  painted  on  commission,  or  between  por- 
traits and  other  pictures. 

108.  First,  as  to  portraits  as  distinguished  from  other  pictures. 
Although  artists  contend  that  the  copyright  in  pictures  should  belong 
to  them  notwithstanding  a  sale,  it  is  admitted  by  some  that  an  excep- 
tion to  the  general  rule  might  be  made  in  the  case  of  portraits,  and 
that  copyright  in  them  might  properly  belong  to  the  purchaser  or 
person  giving  a  commission.  The  evidence  appears  to  us  to  prove, 
first,  that  the  reasons  why  the  copyright  in  portraits  should  belong 
to  the  person  ordering  the  painting  apply  equally  to  other  pictures  ; 
and,  secondly,  that  it  is  by  no  means  easy  to  say  what  a  portrait  is. 
Thus  it  is  open  to  question  whether  the  word  would  include  the  portrait 
of  an  animal,  a  dog,  for  instance,  and  if  so,  whether  it  would  include 
a  number  of  dogs,  or  a  pack  of  hounds  ;  or  a  picture  of  a  house  or 
a  room,  or  any  object  without  life  ;  and  further  whether  it  is  to 
include  pictures  of  persons  taken  in  character,  not  so  much  for  the 
sake  of  the  portrait  of  the  person,  as  for  the  sake  of  the  scene  ;  and, 
lastly,  whether  it  is  to  include  pictures  of  persons  forming  large 
groups,  where  the  scene  is  the  object  of  the  work,  though  the  pict- 
ures of  the  persons  present  are  portraits. 

109.  These  difficulties  lead  us  on  the  whole  to  doubt  the  expedi- 
ency of  drawing  any  distinction  between  portraits  and  other  pictures. 

110.  Secondly,  as  to  making  a  distinction  between  pictures  painted 
on  commission  and  others.  We  are  here  met  with  the  difficulty  of 
defining  what  is  a  commission  ;  and  looking  to  the  evidence  upon 
this  point  we  have  arrived  at  the  conclusion  that  no  distinction  can 
practically  be  made. 

in.  The  only  question  that  remains,  therefore,  on  this  branch  of 
our  inquiry  is,  whether  the  copyright  in  a  picture  when  sold,  should 
still  be  vested  in  the  artist,  independently  of  the  property  in  the 
picture,  or  whether,  unless  expressly  reserved,  it  should  follow  the 
ownership  of  the  picture. 

112.  The  evidence  shows  that  persons  buying  pictures  do  not  in 
general  think  about  the  copyright,  but  that  if  the  subject  happens  to 
be  mentioned,  they  are  generally  under  the  impression  that  the  copy- 
right is  included  in  the  purchase,  and  are  astonished  if  they  are  told 
that  it  is  not.  It  is  said  that  owing  to  this  fact  an  artist,  however 
eminent,  when  he  is  selling  a  picture,  shrinks  from  mentioning  the 


REPORT   OF   THE   BRITISH    COMMISSION.       239 

copyright  and  asking  for  an  agreement  to  enable  him  to  retain  it ; 
he  usually  prefers  that  the  copyright  should  be  absolutely  lost  to  both 
parties,  as  in  the  absence  of  any  written  agreement  it  would  be, 
under  the  first  section  of  the  Act  which  was  passed  in  the  25th  and 
26th  years  of  Your  Majesty's  reign  (c.  68),  than  that  the  purchaser 
should  think  that  he  is  losing  a  valuable  part  of  his  bargain,  and 
consequently  should  decline  to  complete  the  purchase. 

113.  The  principal  reason  why  artists  wish  to  retain  the  copyright 
is  to  keep  control  over  the  engraver  and  photographer.  To  artists 
no  doubt  this  control  is  a  matter  of  considerable  pecuniary  value, 
but  they  urge  that  they  not  only  wish  to  control  engraving  in 
order  to  get  the  payment  from  the  engraver,  but  chiefly  to  prevent 
inferior  engraving,  which  they  consider  prejudicial  to  their  reputa- 
tion. It  is  admitted  that  if  a  picture  is  sold,  the  artist  would  have 
no  power  to  get  it  engraved  when  it  is  in  the  possession  of  the  pur- 
chaser, except  by  his  consent,  and  artists  are  willing  that  this  should 
continue  to  be  the  case  ;  but  if  this  power  of  preventing  engraving 
is  so  valuable,  it  is  not  easy  to  see  why  they  should  hesitate  to 
explain  the  law  to  the  purchaser  and  offer  to  let  him  have  the  copy- 
right if  he  will  preserve  the  picture  from  inferior  engraving,  rather 
than  let  the  copyright  be  lost  both  to  artist  and  purchaser. 

114.  This  difficulty  does  not,  we  may  observe,  arise  in  sales  to 
publishers,  who,  as  a  rule,  purchase  for  the  purpose  of  engraving, 
and  therefore  buy  the  copyright. 

115.  Upon  the  whole,  then,  the  majority  of  us  have  arrived  at  the 
conclusion,  that,  in  the  absence  of  a  written  agreement  to  the  con- 
trary, the  copyright  in  a  picture  should  belong  to  the  purchaser,  or 
the  person  for  whom  it  is  painted,  and  follow  the  ownership  of  the 
picture.  We  may  observe  that  this  conclusion,  though  differing 
from  the  Bill  of  1862  as  originally  drawn,  and  from  a  draft  Bill  of 
1864,  is  in  accordance  with  the  provisions  of  the  Fine  Arts  Bill  of 
1869,  which  we  learn  from  Mr.  Blaine's  report  was  "prepared  by 
direction  of  the  Council  of  the  Society  of  Arts,  Manufactures, 
and  Commerce,  in  consequence  of  a  memorial  having  been  pre- 
sented to  the  Council  by  a  considerable  number  of  the  most  emi- 
nent artists  and  publishers  resident  in  London."  It  is  further  sub- 
stantially the  same  as  the  first  section  of  the  existing  Act  of  1862, 
except  as  to  the  concluding  provision  in  that  section,  which  enacts 
that  the  vendee  cannot  have  the  copyright  unless  an  agreement  to 
that  effect  is  made  in  writing.     This  proviso  was  apparently  added 


240  THE   QUESTION   OF   COPYRIGHT. 

to   the    Bill    without   sufficient    consideration,    during   its   progress 
through  Parliament. 

116.  Upon  this  part  of  the  case  we  may  here  refer  to  a  question 
that  has  been  brought  under  our  notice,  namely,  whether  an  artist 
who  has  sold  a  picture  should  be  allowed,  without  the  consent  of  the 
owner,  to  make  replicas  of  it,  or  whether,  as  has  been  suggested,  a 
distinction  should  be  made  between  replicas  made  by  the  artist  and 
copies  made  by  others  than  the  artist.  We  are  not,  however, 
inclined  to  recognize  any  distinction  ;  nor  indeed,  so  far  at  all  events 
as  replicas  in  the  same  material  are  concerned,  does  it  appear  to  be 
supported  by  artists. 

117.  Though  in  the  preceding  paragraphs  we  have  spoken  only  of 
paintings,  the  law  is  the  same  as  to  drawings  and  photographs  ;  and 
we  think  that,  whatever  changes  may  be  made  in  the  law  as  to  paint- 
ings, the  same  should  be  made  with  regard  to  drawings. 

118.  Photographs,  however,  present  some  difficulty.  At  the  pres- 
ent time  they  are  coupled  by  Act  of  Parliament  with  paintings  and 
drawings,  and  are  subject  to  the  same  law,  but,  as  we  have  before 
pointed  out,  we  believe  this  circumstance  arose  merely  from  the  fact 
that  before  the  year  1862,  when  the  Act  was  passed,  there  was  no 
copyright  protection  afforded  by  the  law  for  either  of  these  subjects, 
and  it  was  then  thought  right  that  photographs  should  be  protected 
as  well  as  other  works  of  art.  On  consideration,  however,  it  will  be 
seen  that  photographs  are  essentially  different  from  paintings  and 
drawings,  inasmuch  as  they  more  nearly  resemble  engravings  and 
works  of  a  mechanical  nature,  by  which  copies  of  pictures  are  multi- 
plied indefinitely. 

119.  We  propose  that  the  term  of  copyright  in  photographs  should 
be  30  years  from  the  date  of  publication,  except  when  originally  pub- 
lished as  part  of  a  book.  In  the  latter  case  it  should  be  for  the  term 
of  copyright  in  the  book. 

120.  But  the  point  upon  which  we  feel  difficulty  is,  whether  the 
copyright  should  be  assimilated  to  that  in  paintings  and  pass  to  a 
purchaser,  or  whether  it  should  remain  with  the  photographer. 
When  photographs  are  taken  with  a  view  to  copies  being  sold  in 
large  numbers,  it  is  practically  impossible  that  the  copyright  in  the 
negative  should  pass  to  each  purchaser  of  a  copy,  and  it  must  remain 
with  the  photographer,  or  cease  to  exist.  On  the  other  hand  the 
same  reasons  exist  for  vesting  the  copyright  of  portraits  in  the  pur- 
chaser or  person  for  whom  they  are  taken,  as  in  the  case  of  a  paint- 


REPORT  OF  THE   BRITISH   COMMISSION.       24 1 

ing.  Indeed,  considering  the  facility  of  multiplying  copies,  and  the 
tendency  among  photographers  to  exhibit  the  portraits  of  distin- 
guished persons  in  shop  windows,  it  may  be  thought  that  there  is 
even  greater  reason  for  giving  the  persons  whose  portraits  are  taken 
the  control  over  the  multiplication  of  copies  than  there  is  in  the  case 
of  a  painting.  It  therefore  becomes  a  question  whether  it  is  not 
necessary  to  make  that  distinction  between  photographs  that  are  por- 
traits and  those  that  are  not,  and  between  photographs  taken  on 
commission  and  those  taken  otherwise,  which  we  have  deprecated  in 
the  case  of  paintings. 

121.  We  suggest  that  the  copyright  in  a  photograph  should  belong 
to  the  proprietor  of  the  negative,  but,  in  the  case  of  photographs 
taken  on  commission,  we  recommend  that  no  copies  be  sold  or  ex- 
hibited without  the  sanction  of  the  person  who  ordered  them. 

122.  The  same  questions  arise  with  respect  to  engravings,  litho- 
graphs, prints,  and  similar  works.  These  arts,  like  photography, 
may  be  employed  for  the  purpose  of  issuing  a  large  number  of  copies 
of  a  picture,  or  merely  for  the  purpose  of  executing  a  commission 
and  printing  a  few  copies,  of  a  portrait  for  instance,  for  private  dis- 
tribution by  the  person  giving  a  commission  among  his  friends.  We 
think,  therefore,  that  so  far  as  regards  the  transfer  and  vesting  of  the 
copyright  these  arts  should  be  placed  upon  the  same  basis  as  photog- 
raphy. 

123.  Before  leaving  the  subject  of  the  fine  arts,  we  wish  to  notice 
one  other  matter  as  to  which  artists  say  the  law  is  disadvantageous 
to  them.  Before  an  artist  paints  a  picture,  he  frequently  finds  it 
necessary  to  make  a  number  of  sketches  or  studies,  which,  grouped 
together,  make  up  the  picture  in  its  finished  state.  These  works 
may  be  studies  expressly  made  for  the  picture  about  to  be  painted, 
or  they  may  be  sketches  which  have  been  made  at  various  times,  and 
kept  as  materials  for  future  pictures.  If,  after  a  picture  is  so  com- 
posed, the  copyright  is  sold,  the  artists  are  afraid  that  they  are  pre- 
vented from  again  using  or  selling  the  same  studies  and  sketches,  as 
they  have  been  advised  that  such  user  or  sale  would  be  an  infringe- 
ment of  the  copyright  they  have  sold. 

124.  It  may  be  doubted  whether  this  fear  is  well  founded,  but  as 
the  use  of  such  studies  and  sketches  as  we  have  described  could  not, 
in  our  opinion,  result  in  any  real  injury  to  the  copyright  owner,  who 
has  copies  of  them  in  his  picture  in  a  more  or  less  altered  shape,  and 
combined  with  other  independent  work,  we  think  the  doubt  should 

16 


242  THE   QUESTION   OF   COPYRIGHT. 

be  removed,  and  that  the  author  of  any  work  of  fine  art,  even  though 
he  may  have  parted  with  the  copyright  therein,  should  be  allowed  to 
sell  or  use  again  his  bond  fide  sketches  and  studies  for  such  works 
and  compositions,  provided  that  he  does  not  repeat  or  colorably 
imitate  the  design  of  the  original  work.  We  may  observe  that  a  pro- 
vision to  this  effect  was  inserted  in  the  Copyright  Bill  which  was 
introduced  by  Lord  Westbury  in  1869. 

Architecture. 

125.  In  the  course  of  our  inquiry  we  received  an  application  from 
the  Royal  Institute  of  British  Architects,  that  a  representative  of  the 
Institute  might  bring  before  us  a  grievance  under  which  architects 
considered  themselves  to  suffer.  Mr.  Charles  Barry,  the  president, 
attended,  and  after  reading  to  us  a  copy  of  a  petition  on  the  subject, 
which  had  been  presented  to  the  House  of  Lords  in  the  year  1869, 
and  some  other  papers  which  will  be  found  in  the  evidence,  con- 
tended that  architects  were  subjected  to  great  injustice  and  injury 
through  their  designs  not  having  the  protection  of  copyright,  so  as 
to  prevent  them  being  used  by  other  persons  than  the  author  for 
building  purposes  ;  and  some  instances  of  hardship  were  given. 

126.  He  suggested  that  the  right  to  reproduce  a  building  should 
be  reserved  to  the  architect  for  20  years,  and  this  whether  reproduc- 
tion were  desired  on  the  same  scale  or  a  different  one,  or  in  whole  or 
in  part,  and  whether  by  the  person  who  gave  the  commission  or  any 
other  ;  and  further  that  copyright  in  architectural  designs  should  be 
reserved  to  the  author  from  the  date  of  erection  of  a  building  or  the 
sale  of  the  design. 

127.  We  are  satisfied,  as  regards  the  former  suggestion,  that  it 
would  be  impracticable  to  reserve  this  right  to  reproduce  a  building. 
With  regard  to  the  latter  suggestion,  we  may  observe  that  though 
architectural  designs  have  no  protection  as  designs,  they  are,  in  our 
opinion,  protected  as  drawings  by  the  Fine  Arts  Act,  passed  in  the 
25th  and  26th  years  of  Your  Majesty's  reign,  so  that  they  may  not 
be  copied  on  paper  ;  and  we  think  that  such  protection  should  be 
preserved. 

Registration  of  Copyright  and  Deposit  of  Copies. 

128.  In  the  early  part  of  our  Report  we  referred  to  the  existing 
law  respecting   registration.     It  affords   one  of   the   most  striking 


REPORT   OF   THE   BRITISH   COMMISSION.       243 

instances  of  those  anomalies  and  distinctions  which  have  grown 
up  in  the  law  of  copyright,  because  the  various  subjects  of  the  copy- 
right law  have  been  dealt  with  by  the  legislature  at  different  times, 
and  because  there  has  been  no  attempt  made  to  bring  them  into  har- 
mony. 

129.  We  would  first  draw  attention  to  the  deposit,  or  presentation 
of  copies  of  books  to  various  public  libraries. 

130.  By  the  present  law  a  copy  of  the  first  edition,  and  of  every 
subsequent  edition  containing  additions  and  alterations,  of  every  book 
published  in  any  part  of  Your  Majesty's  dominions,  must  be  delivered 
at  the  British  Museum  gratuitously,  within  a  certain  time  after  pub- 
lication ;  and  in  default  of  such  delivery  the  publisher  is  subject  to 
penalties.  There  are  four  other  libraries  which  have  a  right,  on 
demand,  to  receive  copies  of  every  edition  of  every  book,  but  to  these 
special  cases  we  shall  hereafter  have  occasion  to  refer.  No  such 
deposit  or  presentation  is  required  in  the  case  of  musical  composi- 
tions or  dramatic  pieces  publicly  performed,  unless  printed  and  pub- 
lished, or  in  the  case  of  lectures  publicly  delivered  unless  printed  and 
published,  or  in  the  case  of  engravings  and  similar  works,  or  of  paint- 
ings, drawings,  or  photographs. 

131.  In  every  c?sw  for  which  registration  is  provided,  except  that 
of  sculpture,  it  is  effected  at  the  Hall  of  the  Stationers'  Company, 
by  an  officer  of  the  company  called  the  Registrar  of  Copyright. 
Sculpture  is  not  registered  at  Stationers'  Hall,  but,  under  the  Copy- 
right in  Designs  Acts,  was,  until  recently,  registered,  if  at  all,  by  the 
Registrar  of  Designs.  Since  the  abolition  of  the  office  for  registra- 
tion of  designs  as  a  separate  paid  office,  sculpture  has  been  registered 
under  arrangements  made  by  the  Commissioners  of  Patents.  We 
ought  here  to  mention  that  under  the  International  Copyright  Act, 
to  which  we  shall  hereafter  more  particularly  allude,  copyright  in 
foreign  works  is  in  all  cases,  including  sculpture,  registered  at  Sta- 
tioners' Hall,  and  that  by  the  same  Act  registration  is  made  compul- 
sory for  works  of  those  classes  which,  if  British,  are  not  required  to 
be  registered,  and  for  which  no  domestic  provision  for  registration 
exists. 

132.  By  the  present  law,  registration  of  books  and  works  included 
by  Act  of  Parliament  in  that  term,  is  optional,  but  no  action  can  be 
maintained  for  infringement  of  copyright  until  they  have  been  regis- 
tered. After  registration,  however,  actions  will  lie  for  antecedent 
infringement.     The  principle  of  the  law,  therefore,  is,  that  copyright 

16 


244  THE   QUESTION   OF   COPYRIGHT. 

attaches  upon  production  and  publication,  and  that  registration  is 
only  a  legal  preliminary  to  the  enforcement  of  the  right  against  a 
wrongdoer.  The  law,  as  will  hereafter  be  seen,  differs  in  regard  to 
other  works  ;  but  at  present  we  confine  our  remarks  to  books. 

133-  We  do  not  consider  this  state  of  the  law  satisfactory.  We 
find  that,  as  a  matter  of  fact,  few  books  are  registered  until  the 
copyright  has  been  infringed,  and  though  the  words  "  Entered  at 
Stationers'  Hall "  are  frequently  to  be  seen  on  the  title-pages  of 
books,  or  on  the  outer  sheets  of  music,  entries  are  not  generally 
made. 

134.  Several  objections  have  been  urged  to  this  state  of  things. 
One  is,  that  if  it  be  the  object  of  registration  to  define  the  extent  and 
the  duration  of  a  right,  as  well  as  to  ascertain  to  whom  the  right 
belongs,  a  law  which  leaves  it  open  to  all  concerned  to  avoid  that 
very  definiteness  which  the  law  seeks  to  impose,  is  clearly  unsatis- 
factory. Under  the  present  system  it  is  impossible  to  ascertain  when 
the  term  of  copyright  in  a  particular  book  commenced,  and  therefore 
to  know  when  it  ends.  And  lastly,  it  is  rendered  uncertain  whether 
an  author  intends  to  insist  upon  his  copyright  at  all. 

135.  The  remedies  which  have  been  proposed  to  us  are  either  the 
total  abolition  of  registration,  or  that  it  should  be  made  compulsory, 
systematic,  and  efficient. 

136.  Those  persons  who  suggest  the  abolition  of  registration  have 
argued  that  it  is  of  no  practical  utility  ; — that  it  cannot,  as  in  the  case 
of  shares,  ships,  or  land,  be  conclusive  evidence  of  title  ; — that  it 
cannot  prove  that  the  book  registered  was  written  by  the  person  who 
registers  it,  or  that  it  is  not  a  piracy  ; — and  that  the  owner  can  assert 
and  prove  his  right  quite  as  well  by  extrinsic  evidence  as  by  means 
of  a  register.  Those,  on  the  other  hand,  who  advocate  registration, 
say  that  it  is  a  useful  system,  because  copyright  is  a  species  of  in- 
corporeal property,  of  which  some  visible  evidence  of  existence  is 
desirable  ; — that  it  may  on  occasions  be  a  matter  of  public  utility  to 
know  to  whom  certain  books  belong,  and  that  by  means  of  regis- 
tration the  public  are  enabled  to  ascertain  the  fact,  and  whether 
copyright  in  a  book  does  exist.  They  argue  further  that  another 
advantage  which  can  and  ought  to  be  derived  from  registration  is 
that  the  register  might  be  made  conclusive  evidence  of  transfer  or 
devolution  of  title  ; — and  that  it  would  afford  to  the  country  a  com- 
plete list  of  all  literary  works  brought  out  in  this  country.  It  is 
also  said  to  be  very  probable  that   in    the   absence  of  registration 


REPORT  OF  THE   BRITISH   COMMISSION.      245 

English  authors  might  find  it  difficult  to  enforce  their  rights  in  other 
countries.  It  is  admitted  to  be  a  convenience  to  an  author  to  be 
able,  under  an  international  copyright  convention,  to  produce  as 
evidence  a  copy  of  the  register,  instead  of  being  obliged  to  prove  by 
witnesses  his  authorship  and  right. 

137.  We  are  satisfied  that  registration  under  the  present  system 
is  practically  useless,  if  not  deceptive.  Great  annoyance  is  caused 
to  persons  who  are  obliged  to  resort  to  the  register,  whether  for  the 
purpose  of  registering  works  or  of  searching  for  entries,  by  the  mode 
in  which  the  register  is  kept.  In  stating  this  we  do  not  desire  to 
express  any  censure  upon  the  gentleman  who  holds  the  office  of 
registrar.  Our  censure  is  intended  to  apply  to  the  system  in  force, 
and  the  law  which  orders,  or  at  least  sanctions  it.  Moreover,  in  our 
opinion  the  fees  are  unnecessarily  high. 

138.  We  have  been  satisfied  by  the  arguments  in  favor  of  regis- 
tration that  it  is  advisable  to  insist  upon  it,  and  that  it  should  be 
made  more  effective  and  complete.  To  this  end  it  should  be  made 
compulsory. 

139.  Before  we  refer  to  the  several  modes  by  which  it  has  been 
suggested  to  us  that  registration  may  be  made  compulsory,  it  will 
be  convenient  to  call  attention  to  the  system  of  registration  now  in 
force. 

140.  The  existing  regulations  as  to  registration  at  Stationers'  Hall 
are  contained  in  the  Copyright  Act  which  was  passed  in  the  5th  and 
6th  years  of  Your  Majesty's  reign.  By  that  Act  a  book  of  registry, 
wherein  may  be  registered  the  proprietorship  in  the  copyright  of 
books  and  assignments  thereof,  and  in  dramatic  and  musical  pieces, 
whether  in  manuscript  or  otherwise,  and  licenses  affecting  such  copy- 
right, is  to  be  kept  at  the  Hall  of  the  Stationers'  Company  by  an 
officer  appointed  by  the  company  for  that  purpose.  The  register 
is  to  be  open  at  all  convenient  times  for  inspection  on  payment  of 
is.  for  every  entry  searched  for  or  inspected,  and  certified  copies 
of  entries  maybe  obtained  on  payment  of  5^.,  such  copies  being 
made  primd  facie  evidence  of  certain  specified  matters  in  all  courts. 
To  make  a  false  entry,  or  to  tender  in  evidence  a  fictitious  copy,  is 
a  misdemeanor.  Any  proprietor  of  copyright  in  a  book  may  enter 
in  the  register,  in  a  specified  form  the  title  of  the  book,  the  time  of 
first  publication,  the  names  and  places  of  abode  of  the  publisher  and 
proprietor  of  the  copyright,  or  of  any  portion  of  the  copyright  :  a 
fee  of  5.f.   is  payable  on  registering  a  book,  and  on  payment  of  a 


246  THE   QUESTION   OF  COPYRIGHT. 

similar  sum  any  copyright  may  be  assigned  by  the  proprietor  by 
making  an  entry  of  the  assignment  in  the  register.  In  case  of  error 
in  the  register,  power  is  vested  in  Your  Majesty's  High  Court  of 
Justice  to  order  a  correction  to  be  made.  With  regard  to  the  regis- 
trar, he,  by  the  terms  of  the  Act,  is  appointed  by  the  Stationers' 
Company.  There  is  no  power  of  dismissal  given,  but  possibly  the 
Company  have  a  power  of  dismissal  for  reasonable  cause.  It  seems 
doubtful  whether  the  appointment  is  for  life,  or  whether  it  is  annual, 
but  renewed  as  a  matter  of  course  ;  but  for  all  practical  purposes 
the  appointment  may  be  regarded  as  a  life  appointment.  The 
remuneration  of  the  registrar  is  by  means  of  the  fees  payable  for 
entries,  certificates,  assignments,  and  searches  for  entries  of  copy- 
rights in  the  register.  These  fees  wholly  belong  to  the  registrar, 
and  the  Stationers'  Company  does  not  participate  in  them. 

141.  In  the  course  of  our  inquiry  we  received  many  complaints  of 
a  serious  character  from  a  number  of  witnesses  against  the  present 
system  of  registration,  and  the  mode  in  which  the  register  is  managed 
and  the  business  conducted  at  Stationers'  Hall.  Great  dissatisfaction 
has  also  been  expressed  at  the  amount  of  the  fees,  but  these  it  will 
be  remembered  are  fixed  by  the  Act  of  Parliament.  With  regard  to 
the  complaints  relating  to  the  conduct  of  the  registration,  we  feel 
bound  to  say  that  the  registrar  (whom  we  invited  to  come  before  us 
a  second  time,  if  he  desired  to  say  anything  in  answer  to  the  charges 
made  by  the  other  witnesses)  was  able  to  give  satisfactory  answers 
to  many  of  the  charges.  Among  others,  complaints  were  made  of 
the  ignorance  displayed  in  the  office  by  the  officials  there,  and  their 
inability  to  answer  questions  put  to  them  relating  to  copyright  and 
registration.  These  questions,  however,  in  many  cases  appeared  to 
be  of  a  legal  and  intricate  character,  and  of  such  a  kind  that  the 
registrar  and  clerks  could  scarcely  be  expected  to  answer  them,  even 
if  it  had  been  their  duty  to  do  so,  upon  which  point  we  entertain 
considerable  doubt. 

142.  Complaints  were  also  made  of  the  inconvenience  of  the 
Registration  Office  and  the  insufficiency  of  the  space.  After  a  care- 
ful examination  into  these  points,  and  a  personal  inspection  of  the 
office  by  some  of  Your  Majesty's  Commissioners,  we  are  satisfied 
that  the  building  is  very  inadequate  for  the  purpose  of  the  business 
conducted  there,  and  that  it  would  become  more  so  upon  the  intro- 
duction of  compulsory  registration.  Nor  can  there  be  any  doubt 
that  the  register  itself  is  capable  of  considerable  improvement. 


REPORT   OF   THE   BRITISH   COMMISSION.       247 

143.  With  regard  to  the  insufficiency  of  the  office  accommodation, 
we  were  informed  by  the  clerk  to  the  Stationers'  Company,  that 
should  the  legislature  continue  to  intrust  to  them  the  duty  of  regis- 
tration they  would  be  willing  in  three  or  four  years'  time,  when  some 
of  their  property  adjacent  to  the  present  office  will  be  pulled  down, 
to  erect  at  their  own  expense  suitable  offices  on  an  increased  scale 
and  with  proper  accommodation. 

144.  It  is  only  fair  to  the  Stationers'  Company  to  point  out  that 
they  have  no  power  under  the  Act  to  make  any  regulations  respect- 
ing registration.  If,  therefore,  registration  be  continued  at  Station- 
ers' Hall,  it  would  appear  to  be  right  that  some  power  of  control 
should  be  vested  in  the  Company  by  Parliament,  and  we  believe  that 
they  are  ready  to  accept  that  power. 

145.  In  order  to  provide  an  improved  system  of  registration  in 
substitution  for  that  now  in  use,  it  appears  to  us  that  the  two  acts  of 
registration  and  deposit  of  the  copy  of  a  book  at  or  for  the  British 
Museum  should  be  combined  ;  or,  in  other  words,  that,  so  far  as  the 
author  is  concerned,  registration  should  be  complete  on  the  deposit 
of  the  copy  and  on  obtaining  an  official  receipt.  One  advantage  of 
this  would  be  a  diminution  of  labor  and  expense,  and  the  British 
Museum  would  probably  receive  all  copyright  books  without  the 
labor  of  hunting  for  them  in  booksellers'  catalogues  and  advertise- 
ments, as  we  are  informed  the  officials  are  obliged  to  do  under  the 
present  system.  Another  advantage  would  be  that  the  fees  to  be 
paid  for  registration  might  be  materially  diminished. 

146.  The  registration  should  be  effected  by  the  registrar  appointed 
for  that  purpose,  whose  duty  it  should  be  to  receive  the  copy  of  the 
book,  to  register  the  official  receipt,  and  to  give  a  copy  thereof,  cer- 
tified by  him,  to  the  person  depositing  the  book.  This  certified  copy 
should  be  a  substitute  for  the  certificate  at  present  obtained,  and  it 
should  be  prima  facie  evidence  in  courts  of  law  of  the  publication 
and  due  registration  of  the  work,  and  of  the  title  to  the  copyright  of 
the  person  named  therein. 

147.  A  fee  of  is.  would  in  our  opinion  be  ample,  if  registration 
be  made  compulsory,  to  render  the  office  of  registration  self-support- 
ing. This  is  shown  by  the  statistics  as  to  the  number  of  books  and 
other  publications  received  at  the  British  Museum,  which  will  be 
found  in  the  Appendix  to  the  Evidence  of  Mr.  J.  Winter  Jones.  There 
might  also  be  a  fee  of  is.  for  searches.  This,  besides  providing  a 
large  revenue,  would  enable  authors  to  obtain  for  is.  both  registra- 


248  THE  QUESTION   OF  COPYRIGHT. 

tion  and  a  certificate  of  registration  of  copyright,  for  each  of  which 
5-f.  is  now  charged. 

148.  We  regard  it  as  a  mistake  that  the  appointment  of  an  officer  for 
so  important  a  duty  as  that  of  registering  rights  affecting  a  vast  num- 
ber of  persons,  and  the  evidence  of  which  ought  to  be  under  the  con- 
trol of  the  Government,  should  be  vested  in  a  private  society.  The 
registers  ought  to  be  placed  in  such  keeping  that  they  may  at  all  times 
be  treated  as  part  of  the  public  records,  and  the  registrar  ought  to  be 
a  person  amenable  to  a  Government  department.  The  necessity  for 
this  would  be  increased  by  the  acceptance  of  our  suggestion  that 
registration  should  be  made  compulsory.  In  any  case  the  registry 
and  the  registrar  should  be  under  Government  direction  and  respon- 
sible to  Government. 

149.  Considering  that  a  copy  of  each  book  has  to  be  deposited  at 
the  British  Museum, — that  at  present  the  authorities  of  the  Museum 
have  to  give  receipts  for  the  works  deposited  and  to  keep  certain 
registers, — and  that  it  is  a  part  of  our  plan  that  the  deposit  of  the 
book  and  registration  of  the  copyright  should  be  combined, — it 
appeared  to  us  that  the  most  appropriate  place  for  the  Registry  Office 
would  be  the  British  Museum,  and  that  the  officers  of  the  registry, 
whilst  under  the  general  control  of  the  trustees  of  the  Museum, 
should  be  answerable  to  Government  for  the  proper  discharge  of 
their  duties.  We,  therefore,  put  ourselves  into  communication  with 
the  trustees,  with  a  view  of  ascertaining  their  opinion  on  the  point, 
but  they  stated  that  they  deemed  it  undesirable  for  the  British  Mu- 
seum to  undertake  the  duty,  on  the  ground  that  registration  of  copy- 
right is  an  executive  function,  and  did  not  come  within  the  sphere 
of  their  duties  as  trustees  of  the  British  Museum.  A  copy  of  the 
correspondence  will  be  found  in  the  Appendix  and  we  cannot  but 
express  our  regret  that  the  trustees  declined  to  accede  to  our  request 
that  one  of  their  body  should  appear  before  us.  It  is  probable  that 
a  full  explanation  of  our  views  and  a  personal  discussion  might  have 
removed  the  difficulties  which  they  felt  upon  this  point. 

150.  If  registration  of  copyright  should  not  be  established  at  the 
British  Museum,  it  might  be  either  retained  at  Stationer's  Hall,  or 
removed  to  some  Government  office  established  for  the  purpose.  It 
is  proper  to  state  that  the  Stationers'  Company  seem  desirous  of 
retaining  the  office,  because  their  Hall  has  been  the  place  for  regis- 
tration ever  since  registration  was  instituted  ;  and  further  that  it  has 
been  recognized  as  the  place  of  registration  in  several  international 


REPORT   OF  THE   BRITISH   COMMISSION.       249 

conventions.  In  our  opinion,  however,  the  reasons  in  favor  of  trans- 
ferring registration  to  a  Government  office  preponderate.  In  either 
case  arrangements  will  have  to  be  made  for  transferring  to  the  Brit- 
ish Museum  the  works  which  are  deposited  and  registered  else- 
where. 

151.  It  only  remains  for  us  to  notice  the  means  by  which  registra- 
tion may  be  most  easily  rendered  compulsory.  Three  ways  have 
been  suggested  to  us  in  which  this  may  be  done  : — 1.  By  making 
registration  on  the  date  of  publication  a  condition  of  an  effective 
copyright.  2.  By  inflicting  a  pecuniary  penalty.  3.  By  giving  the 
owner  a  direct  interest  in  registering  his  copyright.  With  reference 
to  the  second  suggestion,  there  is  at  present  a  pecuniary  penalty  for 
failure  to  present  books  to  the  library  of  the  British  Museum,  and  it 
is  urged  that  it  would  be  found  sufficient  for  the  purpose  of  compel- 
ling registration  ;  but  to  this  it  is  replied  that  little  effect  can  be 
expected  in  such  a  case  as  registration  of  copyright  from  a  mere 
penalty  ;  and  also  that  a  penalty  would  have  to  be  enforced  through 
the  medium  of  some  Government  office  ;  and  that,  independently  of 
the  difficulty  there  would  be  in  finding  out  books  that  had  not  been 
registered,  no  Government  office  would  willingly  execute  the  task  of 
suing  for  penalties.  With  regard  to  the  presentation  of  books  to 
the  British  Museum,  the  Museum  has  an  interest  in  procuring  the 
books  distinct  from  the  matter  of  the  penalty. 

152.  With  the  third  suggestion  we  are  inclined  to  agree  ;  and 
although  we  are  not  disposed  to  advise  the  abolition  of  a  penalty  for 
not  delivering  for  the  use  of  the  British  Museum  a  copy  of  every 
book  which  has  not  been  delivered  and  registered  at  Stationers' 
Hall,  or  some  Government  place  of  registration,  we  think  that  com- 
pulsory registration  would  be  sufficiently  secured  by  the  third  course 
that  has  been  suggested,  namely, — that  a  copyright  owner  should 
not  be  entitled  to  take  or  maintain  any  proceedings,  or  to  recover 
any  penalty  in  respect  of  his  copyright  until  he  has  registered,  and 
that  he  should  in  no  case  be  able  to  proceed  after  registration  for  pre- 
ceding acts  of  piracy.  This  is  the  present  law  in  the  case  of  paint- 
ings, drawings,  and  photographs,  and  we  see  no  reason  why  the 
same  law  should  not  be  applied  to  copyright  in  every  other  work  that 
has  to  be  registered. 

153.  If  this  plan  should  be  adopted,  it  becomes  a  question  what 
should  happen  after  registration  with  regard  to  copies  made  before 
registration.     Were   the   copyright  owner  entitled  upon  registration 


250  THE   QUESTION   OE   COPYRIGHT. 

to  suppress  all  such  copies,  the  compulsory  provisions  of  the  law 
would  to  a  certain  extent  be  neutralized,  because  it  would  be  unnec- 
essary for  copyright  owners  to  register  until  their  works  had  been 
copied.  It  has  been  urged,  on  the  other  hand,  that  if  an  unscrupu- 
lous person  should,  after  the  expiration  of  the  time  allowed  for  regis- 
tration, and  before  registration,  publish  a  large  number  of  copies, 
the  copyright  owner  would  practically  lose  all  the  benefit  of  his 
copyright  if  these  copies  were  allowed  to  be  sold  and  circulated  after 
registration.  We  think,  however,  that  in  practice  this  would  not 
occur.  As  a  rule,  registration  would  be  effected  immediately  on  pub- 
lication, and  before  the  work  could  be  copied. 

154.  We  therefore  recommend  that  proprietors  of  copyright  should 
not  be  entitled  to  maintain  any  proceedings  in  respect  of  anything 
made  or  done  before  registration,  nor  in  respect  of  any  dealings  sub- 
sequent to  registration  with  things  so  made  or  done  before  registra- 
tion. But  as  this  provision  might  in  some  cases  operate  harshly,  we 
think  it  should  not  apply  if  registration  is  effected  within  a  limited 
time,  say  one  month,  after  publication. 

155.  In  making  these  remarks  on  the  subject  of  registration,  we 
have  referred  only  to  books  and  works  of  a  similar  character,  but  we 
intend  them  equally  to  apply,  with  one  exception,  to  dramatic  pieces 
and  musical  compositions  which  are  publicly  performed  but  are  not 
printed  and  published.  We  have  suggested  that  the  acts  of  registra- 
tion and  deposit  of  a  copy  of  the  book  should  be  combined,  and 
it  is  manifest  that  there  could  not  conveniently  be  any  deposit  of  a 
copy  of  a  work  not  printed  ;  we  propose,  therefore,  that  in  these 
cases  it  should  be  sufficient  that  the  title  of  every  drama  or  musi- 
cal composition,  with  the  name  of  the  author  or  composer,  and 
the  date  and  place  of  its  first  public  performance,  should  be  regis- 
tered. 

156.  For  the  sake  of  uniformity  we  are  of  opinion  that  it  is 
desirable  that  the  law  of  registration  should,  as  far  as  possible, 
be  the  same  for  works  of  fine  art  as  for  books,  music,  and  the 
drama. 

157.  It  has,  however,  been  strongly  urged  upon  us  that  compulsory 
registration  in  the  case  of  paintings  and  drawings  is  practically 
impossible  ;  and  it  would  seem  that  the  same  arguments  that  are 
used  against  compulsory  registration  in  the  case  of  paintings  and 
drawings  apply  equally  to  sculpture.  There  is  no  doubt  a  great  dif- 
ficulty in  the  way  of  compulsory  registration  of  paintings  and  draw- 


REPORT  OF  THE  BRITISH   COMMISSION.       25 1 

ings.  This  arises  from  the  fact  that  the  class  of  pictures  to  be  regis 
tered  cannot  be  limited,  and  that  if  copyright  in  an  important  work 
is  only  to  be  secured  by  registration,  copyright  in  the  smallest  sketch 
or  study  could  only  be  preserved  by  the  same  means.  Some  diffi- 
culty also  arises  from  the  fact  that  paintings,  drawings,  and  sketches 
are  so  frequently  subjected  to  alteration  that  it  would  be  almost 
impossible  to  say  when  a  work  is  finished  so  as  to  be  capable  of 
registration  as  a  completed  work. 

158.  On  these  grounds,  therefore,  we  recommend  that  registration 
of  paintings  and  drawings  should  not  be  insisted  on  so  long  as  the 
property  in  the  picture  and  the  copyright  are  vested  in  the  same 
person,  but  that  if  the  copyright  be  separated  by  agreement  from  the 
property  in  the  picture,  there  should  be  compulsory  registration,  and 
that  the  register  should  show, — 

(a.)  The  date  of  the  agreement. 

(6.)  The  names  of  the  parties  thereto. 

(V.)  The  names  and  places  of  abode  of  the  artist  and  of  the  person 
in  whom  the  copyright  is  vested. 

(d.)  A  short  description  of  the  nature  and  subject  of  the  work, 
and,  if  the  person  registering  so  desires,  a  sketch  outline  or 
photograph  of  the  work  in  addition  thereto. 

159.  With  regard  to  such  works  as  engravings,  prints,  and  photo- 
graphs, there  would  not  be  the  same  difficulty,  and  we  think  that 
they  should  be  subject  to  compulsory  registration  in  the  same  way  as 
books. 

Forfeiture  of  Copies. 

160.  Before  proceeding  farther  we  may  notice  a  provision  of  the 
law  which  we  consider  of  great  value  as  a  protection  for  owners  of 
copyright,  and  which  we  consider  it  desirable  to  retain.  By  the  Act 
which  was  passed  in  the  5th  and  6th  years  of  Your  Majesty's  reign 
it  is  provided  that  all  copies  of  any  book  in  which  there  is  copyright, 
unlawfully  printed  or  imported  without  the  consent  in  writing  under 
his  hand  of  the  registered  proprietor  of  the  copyright,  are  to  be 
deemed  to  be  the  property  of  the  registered  proprietor  of  such  copy- 
right, and  he  may  sue  for  and  recover  the  same,  with  damages  for 
the  detention  thereof,  from  any  person  who  detains  them  after  a 
demand  thereof  in  writing.  We  recommend  that  this  provision, 
mutatis  mutandis,   should  be  extended  to  works  of  fine  art.     We 


252  THE   QUESTION   OF   COPYRIGHT. 

think  it  would,  however,  be  an  improvement  to  provide  that  these 
copies  and  damages  might  be  summarily  recovered  by  application  to 
a  magistrate. 

Public  Libraries. 

161.  The  subject  which  we  have  next  to  notice  is  the  obligation 
that  now  exists  to  present  gratuitously  copies  of  every  book  pub- 
lished to  certain  public  libraries.  This  obligation  dates  from  the 
reign  of  his  Majesty  King  Charles  II.,  and  since  that  date  it  has 
varied  from  time  to  time  as  regards  the  number  of  copies  required  to 
be  presented  and  the  libraries  entitled  to  them,  the  number  of  the 
latter  having  at  one  time  been  as  high  as  eleven.  The  Act  by  which 
the  present  obligation  was  imposed  is  that  which  was  passed  in  the 
5th  and  6th  years  of  Your  Majesty's  reign.  By  that  Act  one  copy 
of  every  book  published,  and  of  every  second  or  subsequent  edition, 
if  any  alterations  or  additions  are  contained  therein,  has  to  be  de- 
livered gratuitously  by  the  publisher  at  the  British  Museum,  and  if 
a  demand  be  made  in  writing  one  copy  has  also  to  be  delivered 
gratuitously  for  the  Bodleian  Library  at  Oxford,  the  public  library 
at  Cambridge,  the  library  of  the  Faculty  of  Advocates  at  Edinburgh, 
and  the  library  of  Trinity  College,  Dublin.  Thus  authors  and  pub- 
lishers have  now  generally  to  provide  five  copies  of  each  work,  as 
well  as  of  second  and  subsequent  editions,  at  their  own  cost  for 
public  use.  A  slight  difference  is  made  between  the  cases  of  the 
copies  given  to  the  British  Museum  and  of  those  given  to  the  other 
libraries.  In  the  former  the  copies  have  to  be  of  the  best  kind  pub- 
lished, and  in  the  latter  the  copies  are  to  be  upon  the  paper  of  which 
the  largest  number  of  copies  of  the  book  or  edition  is  printed  for 
sale  ;  and  in  the  former  the  delivery  is  obligatory  in  every  instance, 
while  in  the  latter  it  is  only  required  if  a  demand  be  made.  As  a 
matter  of  fact,  however,  copies  of  nearly  every  work  of  any  impor- 
tance are  presented  to  all  five  libraries. 

162.  Many  of  the  witnesses  who  have  given  evidence  before  us 
have  complained  of  this  obligation  as  a  heavy  and  unjust  tax.  The 
weight  of  it,  however,  is  hardly  felt  in  the  case  of  low-priced  books, 
or  books  of  large  circulation,  though  the  gratuitous  presentation  of  a 
number  of  books  of  even  small  value  involves  a  double  loss  to  authors 
and  publishers,  assuming  that  the  libraries  would  each  buy  a  copy, 
were  one  not  to  be  obtained  without  payment.  The  grievance  is  of 
course  most  felt  in  the  case  of  expensive  works.  Publishers  com- 
plain of  the  injustice  of  taxing  them  or  the  authors  for  the  mainte- 


REPORT   OF   THE   BRITISH   COMMISSION.       253 

nance  of  public  libraries,  and  ask  why  the  public,  or  the  bodies  to 
be  benefited,  should  not  pay  for  the  books  they  require. 

163.  When  this  complaint  was  made  to  us  we  communicated  with 
the  authorities  at  the  libraries  other  than  the  British  Museum,  in 
order  to  ascertain  the  number  of  books  obtained  by  them  under  the 
Act,  and  the  value  they  attached  to  their  privilege.  We  obtained 
replies  from  which  it  appears  that  a  large  number  of  the  books  pub- 
lished are  sent  to  these  libraries,  and  that  they  are  generally  sent 
without  any  demand  being  made  for  their  delivery  ;  also  that  the 
authorities  regard  the  privilege  as  one  of  considerable  value,  which 
they  are  not  willing  to  part  with.  We  have  placed  a  copy  of  this 
correspondence  in  the  Appendix  to  the  Evidence. 

164.  Having  to  decide  between  the  authors  and  publishers  on  the 
one  hand,  and  the  libraries  on  the  other,  we  on  the  whole  consider 
that  the  complaint  of  the  authors  and  publishers  is  well  founded,  and 
we  have  come  to  the  conclusion  that  so  much  of  the  existing  law 
relative  to  gratuitous  presentation  of  books  to  libraries,  as  requires 
copies  of  books  to  be  given  to  libraries  other  than  that  of  the  British 
Museum,  should  be  repealed.  In  making  this  recommendation  we 
have  taken  into  consideration  the  facts  that  the  bodies  to  whom  the 
libraries  belong  are  possessed  of  considerable  means  and  are  well 
able  to  purchase  any  books  which  they  may  require  ;  and  also  that 
the  repeal  of  the  clause  giving  the  privilege,  will  not  deprive  the 
libraries  of  any  property  already  acquired,  but  merely  of  a  right  to 
obtain  property  hereinafter  to  be  created. 

165.  It  will  have  been  seen  that  we  do  not  propose  to  interfere 
with  the  obligation  to  deliver  at  the  library  of  the  British  Museum  a 
copy  of  every  book  published,  as  it  is  a  part  of  our  scheme  that 
registration  should  be  effected  and  copyright  secured  by  the  deposit 
of  a  copy  of  the  work  for  the  public  use.  To  this  we  think  no  rea- 
sonable objection  can  be  made. 

166.  We  will  only  add  that  the  importance  of  securing  a  national 
collection  of  every  literary  work  has  been  recognized  in  most  of  the 
countries  where  there  are  copyright  laws.  And  with  a  view  to 
make  the  collection  in  this  country  more  perfect,  we  are  disposed  to 
think  that  it  would  be  desirable  to  require  the  deposit  at  the  British 
Museum  of  a  copy  of  every  newspaper  published  in  the  United 
Kingdom.  As  a  matter  of  fact,  such  newspapers  are,  we  believe, 
now  deposited  there,  but  a  doubt  has  been  raised  whether  that  de- 
posit could  be  enforced  under  the  existing  law. 


254  THE  QUESTION   OF  COPYRIGHT. 

Music  and  the  Drama. — Penalties. 

167.  We  have  next  to  refer  to  a  provision  of  the  law  which  has  of 
late  occasioned  some  dissatisfaction,  and  which,  in  our  opinion, 
needs  revision. 

168.  By  an  Act  of  Parliament  which  was  passed  in  the  third  year 
of  the  reign  of  His  late  Majesty  King  William  IV.  (c.  15  ,  it  was 
enacted,  with  reference  to  dramatic  copyright,  that  if  any  person 
should,  during  the  continuance  of  the  sole  liberty  of  representation 
and  contrary  to  the  right  of  the  author,  or  his  assignee,  represent  or 
cause  to  be  represented,  without  the  consent  in  writing  of  the  pro- 
prietor of  the  copyright  first  had  and  obtained,  at  any  place  of  dra- 
matic entertainment  within  the  British  dominions,  any  dramatic 
piece,  the  offender  should  be  liable,  for  each  and  every  representation, 
to  the  payment  of  an  amount  not  less  than  40^.,  or  to  the  full 
amount  of  the  benefit  or  advantage  arising  from  the  representation, 
or  the  injury  or  loss  sustained  by  the  proprietor  of  the  copyright, 
whichever  should  be  the  greater  damages  ;  such  sum  to  be  recovered 
together  with  double  costs  of  suit  by  the  proprietor.  In  the  20th 
section  of  the  Act,  which  was  passed  in  the  5th  and  6th  years  of 
Your  Majesty's  reign  (c.  45),  it  was  recited  that  it  was  expedient  to 
extend  to  musical  compositions  the  benefits  of  the  earlier  Act,  and 
it  was  enacted  that  the  provisions  of  the  earlier  Act  should  apply  to 
musical  compositions. 

169.  This  provision  for  the  40J.  penalty  has  lately^  been  much 
abused.  Copyrights  in  favorite  songs  from  operas  and  in  other 
works  have  been  bought,  and  powers  of  attorney  have  been  obtained 
to  act  apparently  for  the  owners  of  the  copyright  in  such  works,  and 
to  claim  immediate  payment  of  2/.  for  the  performance  of  each  song. 
These  songs  are  frequently  selected  by  ladies  and  others  for  singing 
at  penny  readings  and  village  or  charitable  entertainments,  and  they 
sing  them  not  for  their  own  gain,  but  for  benevolent  objects.  In 
such  cases  there  is  manifestly  no  intention  to  infringe  the  rights  of 
any  person  ;  the  performers  are  unconscious  that  they  are  infringing 
such  rights  ;  and  no  injury  whatever  can  be  inflicted  on  the  proprie- 
tors of  the  copyrights.  In  many  cases  of  this  kind,  and  under  a 
threat  of  legal  proceedings  in  default  of  payment,  the  penalty  has 
been  demanded,  and  we  have  reason  to  believe  that  the  money  so 
demanded  has  been  generally  paid.  Many  instances  of  this  pro- 
ceeding have  been  brought  to  our  notice  from  various  parts  of  the 
country,  and  some  will  be  found  in  the  evidence. 


REPORT   OF  THE   BRITISH   COMMISSION.       255 

170.  We  have  inquired  whether  the  abolition  of  the  right  to  take 
proceedings  for  the  performance  of  these  single  songs  would  inflict 
injury  on  composers.  The  opinion  seemed  to  be  that  though  public 
performance  is  generally  advantageous  to  composers,  since  it  oper- 
ates as  an  advertisement  of  their  works,  it  is  necessary  that  copyright 
owners  should  retain  sufficient  control  to  enable  them  to  save  their 
music  from  inferior  or  unsuitable  performance,  which  might  give  the 
public  an  unfavorable  opinion  of  their  compositions. 

171.  The  amendment  in  the  law  which  we  propose  as  most  likely 
to  preserve  control  for  the  composers,  and  at  the  same  time  to  check 
the  existing  abuse,  is  that  every  musical  composition  should  bear  on 
its  title-page  a  note  stating  whether  the  right  of  public  performance 
is  reserved,  and  the  name  and  address  of  the  person  to  whom  appli- 
cation for  permission  to  perform  is  to  be  made.  The  owner  of  such 
composition  should  only  be  entitled  to  recover  damages  for  public 
performance  when  such  a  statement  has  been  made  ;  and  instead  of 
the  minimum  penalty  of  not  less  than  40J.  at  present  recoverable  for 
any  infringement  of  musical  copyright  by  representation,  the  court 
should  have  power  to  award  compensation  according  to  the  damage 
sustained. 

172.  This  abuse  of  the  powers  given  by  the  Act  does  not  seem  to 
have  arisen  in  the  case  of  dramatic  copyright,  nor  does  it  seem  likely 
to  arise  so  long  as  the  present  law  of  licensing  places  of  dramatic 
performance  exists.  We  do  not  therefore  suggest  any  alteration  in 
the  law  so  far  as  it  applies  to  that  copyright. 

Fine  A  rts.  — Infringem  en  t. 

173.  Two  matters  relating  to  infringement  of  copyright  in  works  of 
fine  art,  but  particularly  of  paintings,  have  been  brought  to  our  notice, 
in  which,  it  is  alleged,  the  law  affords  an  inadequate  remedy. 

174.  First,  by  the  6th  section  of  the  Act  which  was  passed  in  the 
25th  and  26th  years  of  Your  Majesty's  reign  (c.  68)  it  was  enacted 
that  if  any  person  should  infringe  copyright  in  any  painting,  drawing, 
or  photograph,  he  should  be  liable  to  a  penalty  of  10/. ,  and  all  the 
piratical  copies  should  be  forfeited  to  the  proprietor  of  the  copy- 
right. Artists  and  engravers,  who  are  frequently  proprietors  of 
copyright  in  paintings  and  drawings,  consider  the  provision  enabling 
them  to  seize  piratical  copies  to  be  of  great  value,  but  they  say  that 
it  is  rendered  inefficient  by  the  fact  that  no  power  is  given  to  enter  a 
house  and  search  for  copies.     An  instance  was  given  to  us  where,  a 


256  THE   QUESTION   OF   COPYRIGHT. 

conviction  for  selling  piratical  copies  having  been  obtained,  the  mag- 
istrate had  made  an  order  that  the  copies  should  be  delivered  up, 
but  it  was  found  that  the  order  could  not  be  enforced. 

175.  The  only  remedy  suggested  to  meet  the  evil,  is  that  proposed 
in  the  Bill  introduced  into  Parliament  in  the  year  1869,  but  with- 
drawn before  it  became  law,  and  which  runs  as  follows  : — 

"  Upon  proof  on  the  oath  of  one  credible  person  before  any  justice 
of  the  peace,  court,  sheriff,  or  other  person  having  jurisdiction  in 
any  proceeding  under  this  Act  that  there  is  reasonable  cause  to  sus- 
pect that  any  person  has  in  his  possession,  or  in  any  house,  shop,  or 
other  place  for  sale,  hire,  distribution  or  public  exhibition  any  copy, 
repetition  or  imitation  of  any  work  of  fine  art  in  which  or  in  the  de- 
sign whereof  there  shall  be  subsisting  and  registered  copyright  under 
the  Act,  and  that  such  copy,  repetition,  or  imitation  has  been  made 
without  the  consent  in  writing  of  the  registered  proprietor  of  such 
copyright,  it  shall  be  lawful  for  such  justice,  court,  sheriff  or  other 
person  as  aforesaid  before  whom  any  such  proceeding  is  taken,  and 
he  or  they  is  and  are  hereby  required  to  grant  his  or  their  warrant  to 
search  in  the  daytime  such  house,  shop,  or  other  place,  and  if  any 
such  copy,  repetition,  or  imitation,  or  any  work  which  may  be  reason- 
ably suspected  to  be  such  shall  be  found  therein,  to  cause  the  same 
to  be  brought  before  him  or  them,  or  before  some  other  justice  of 
the  peace,  court,  sheriff,  or  person  as  aforesaid,  and  upon  proof  that 
any  or  every  such  copy,  repetition,  or  imitation  was  unlawfully  made, 
the  same  shall  thereupon  be  forfeited  and  delivered  up  to  the  registered 
proprietor  for  the  time  being  of  the  copyright  as  his  property." 
Though  we  should  be  glad  to  see  some  remedy  adopted,  we  entertain 
doubts  whether  that  proposed  is  not  of  a  more  stringent  character 
than  the  circumstances  justify. 

176.  The  other  matter  relative  to  copyright  in  the  fine  arts,  with 
regard  to  which  it  is  said  the  law  is  defective,  arises  out  of  the  now 
very  common  practice  of  hawking  about  the  country  piratical  copies, 
and  particularly  piratical  photographs  of  copyright  paintings  and 
engravings.  This  is  spoken  of  as  a  serious  injury  to  the  copyright 
proprietors,  and  a  practice  which  the  existing  law  is  powerless  to 
stop. 

177.  At  present  all  penalties  and  all  copies  forfeited  can  be  re- 
covered in  England  and  Ireland  only  by  action  or  by  summary  pro- 
ceedings before  justices,  that  is,  by  summoning  the  offending  person 
before   the  justices,  and  in  Scotland  by  action   before  the  Court  of 


REPORT  OF  THE   BRITISH   COMMISSION.       257 

Session,  or  by  summary  action  before  the  sheriff.  The  complaint 
made  to  us  is  that  there  is  no  power  to  seize  piratical  copies  where 
they  are  seen  and  when  they  might  be  taken.  The  power  to  pro- 
ceed by  summons  is,  it  is  said,  generally  ineffectual,  because  persons 
selling  these  copies  go  round  from  house  to  house  and  refuse  to  give 
either  a  name  or  address,  and  are  altogether  lost  sight  of  before  a 
summons  can  be  procured. 

178.  A  remedy  by  seizure  was  proposed  in  the  Bill  of  1S69,  and  we 
think  that  the  evil  can  best  be  met  by  the  introduction  in  any  future 
Act  of  a  clause  similar  to  the  15th  of  that  Bill.  The  15th  clause  was 
as  follows  : — 

"  If  any  person  elsewhere  than  at  his  own  house,  shop,  or  place  of 
business,  shall  hawk,  carry  about,  offer,  utter,  distribute,  or  sell,  or 
keep  for  sale,  hire,  or  distribution,  any  unlawful  copy,  repetition,  or 
colorable  imitation  of  any  work  of  fine  art,  in  which,  or  in  the  de- 
sign whereof,  there  shall  be  subsisting  and  registered  copyright  under 
this  Act,  all  such  unlawful  articles  may  be  seized  without  warrant  by 
any  peace  officer,  or  the  proprietor  of  the  copyright,  or  any  person 
authorized  by  him,  and  forthwith  taken  before  any  justice  of  the 
peace,  court,  sheriff,  or  other  person  having  jurisdiction  in  any  pro- 
ceeding under  this  Act,  and  upon  proof  that  such  copies,  repetitions, 
or  imitations  were  unlawfully  made,  they  shall  be  forfeited  and  de- 
livered up  to  the  registered  proprietor  for  the  time  being  of  the  copy- 
right as  his  property." 

We  think,  however,  that  the  words  "  carry  about"  might  be  prop- 
erly omitted,  as  the  other  words  are  sufficiently  large  ;  and  further, 
that  it  should  not  be  in  the  power  of  the  proprietor  of  the  copyright, 
or  any  person  authorized  by  him,  to  seize,  but  that  the  clause  should 
run  :  "  without  warrant  by  any  peace  officer  under  the  orders  and 
responsibility  of  the  proprietor  of  the  copyright  or  of  any  person 
authorized,"  etc.,  01  to  that  effect. 

179.  Besides  providing  penalties  for  various  acts  of  infringement  of 
copyright,  and  for  fraudulently  marking  pictures  with  the  names  or 
marks  of  artists  who  are  not  the  authors  of  them,  which  penalties  we 
think  are  sufficient  for  the  purpose,  the  present  law  prohibits  the  im- 
portation into  the  United  Kingdom,  except  with  the  consent  of  the 
proprietor,  of  all  repetitions,  copies,  or  imitations  of  paintings,  draw- 
ings or  photographs  in  which  there  is  copyright,  which  have  been  made 
in  any  foreign  state  or  in  any  other  part  of  the   British  dominions 

than  the  United  Kingdom.     We  think  it  is  desirable  to  retain  this 
17 


258  THE   QUESTION   OF   COPYRIGHT. 

prohibition,  and  that  a  somewhat  similar  prohibition  might  properly 
be  extended  to  the  exportation  of  unlawful  repetitions,  copies,  and 
imitations. 

180.  Whatever  powers  may  be  given  to  search  for  and  seize  piratical 
copies  of  paintings,  and  whatever  penalties  may  be  established,  the 
same  should  be  extended  to  sculpture  and  other  works  of  fine  art. 

Piracy  of  Lectures. 

181.  We  have  already  suggested  some  alterations  in  the  law  with 
respect  to  lectures.  In  case  of  piracy  either  by  publication  or  re- 
delivery without  the  author's  consent,  we  think  there  should  be 
penalties  recoverable  by  summary  process,  and  that  the  author  should 
be  capable  of  recovering  damages  by  action  in  case  of  serious  injury, 
and  of  obtaining  an  injunction  to  prevent  printed  publication  or  re- 
delivery. If  the  piracy  is  committed  by  printed  publication,  we 
think  the  author  should  also  have  power  to  seize  copies. 

COLONIAL    COPYRIGHT. 

182.  We  have  already  shown  that  in  some  important  respects  the 
state  of  the  present  copyright  law,  as  regards  the  colonies,  is  anoma- 
lous and  unsatisfactory,  and  we  have  suggested  that  a  remedy  may  be 
found  by  providing  that  publication  in  any  part  of  Your  Majesty's 
dominions  shall  secure  copyright  throughout  those  dominions.  It  is 
unnecessary  to  recapitulate  our  reasons  for  making  this  suggestion, 
and  we  will  only  add  that  the  difficulties  which  may  arise  in  arranging 
the  details  of  this  change  in  the  law,  will  not,  we  anticipate,  be  of  a 
serious  character. 

183.  There  remain,  however,  other  questions  of  some  difficulty 
affecting  the  general  body  of  readers  in  the  colonies,  with  which  we 
now  proceed  to  deal. 

184.  It  must  be  admitted  that  it  is  highly  desirable  that  the  litera- 
ture of  this  country  should  be  placed  within  easy  reach  of  the  colonies, 
and  that  with  this  view  the  Imperial  Act  should  be  modified,  so  as  to 
meet  the  requirements  of  colonial  readers. 

185.  In  this  country  the  disadvantage  arising  from  the  custom  of 
publishing  books  in  the  first  instance  at  a  high  price,  is  greatly  less- 
ened by  the  facilities  afforded  by  means  of  clubs,  book  societies,  and 
circulating  libraries. 

186.  These  means  are  not  available,  and  indeed  are  impracticable, 
owing  to  the  great  distances  and  scattered  population,  in  many  of  the 


REPORT  OF  THE  BRITISH   COMMISSION.      259 

colonies,  and  until  the  cheaper  English  editions  have  been  published 
the  colonial  reader  can  only  obtain  English  copyright  books  by  pur- 
chasing them  at  the  high  publishing  prices,  increased  as  those  prices 
necessarily  are  by  the  expense  of  carriage  and  other  charges  incidental 
to  the  importation  of  the  books  from  the  United  Kingdom. 

187.  Complaints  of  the  operation  of  the  Copyright  Act  of  1842  were 
heard  soon  after  it  was  passed,  and  from  the  North  American  prov- 
inces urgent  representations  were  made  in  favor  of  admitting  into 
those  provinces  the  cheap  United  States  reprints  of  English  works. 
In  1846  the  Colonial  Office  and  the  Board  of  Trade  admitted  the 
justice  and  force  of  the  considerations  which  had  been  pressed  upon 
the  Home  Government,  "as  tending  to  show  the  injurious  effects 
produced  upon  our  more  distant  colonists  by  the  operation  of  the 
Imperial  law  of  copyright."  And  in  1847  an  Act  was  passed  "  To 
amend  the  law  relating  to  the  protection  in  the  colonies  of  works 
entitled  to  copyright  in  the  United  Kingdom." 

188.  The  principle  of  this  Act,  commonly  known  as  the  Foreign 
Reprints  Act,  is  to  enable  the  colonies  to  take  advantage  of  reprints 
of  English  copyright  books  made  in  foreign  states,  and  at  the  same 
time  to  protect  the  interests  of  British  authors. 

189.  It  is  provided,  "  that  in  case  the  legislature,  or  proper  legis- 
lative authorities  in  any  British  possession,  shall  be  disposed  to  make 
due  provision  for  securing  or  protecting  the  rights  of  British  authors 
in  such  possession,  and  shall  pass  an  Act  or  make  an  ordinance  for 
that  purpose,  and  shall  transmit  the  same  in  the  proper  manner  to 
the  Secretary  of  State,  in  order  that  it  may  be  submitted  to  Her 
Majesty,  and  in  case  Her  Majesty  shall  be  of  opinion  that  such  Act  or 
ordinance  is  sufficient  for  the  purpose  of  securing  to  British  authors 
reasonable  protection  within  such  possession,  it  shall  be  lawful  for 
Her  Majesty,  if  she  think  fit  so  to  do,  to  express  Her  royal  approval 
of  such  Act  or  ordinance,  and  thereupon  to  issue  an  Order  in  Coun- 
cil, declaring  that  so  long  as  the  provisions  of  such  Act  or  ordinance 
continue  in  force  within  such  colony,  the  prohibitions  contained  in 
the  aforesaid  Acts  {i.e.,  the  Copyright  Act  of  1842,  and  a  certain 
Customs  Act),  and  hereinbefore  recited,  and  any  prohibitions  con- 
tained in  the  said  Acts,  or  in  any  other  Acts,  against  the  importing, 
selling,  letting  out  to  hire,  exposing  for  sale  or  hire,  or  possessing 
foreign  reprints  of  books  first  composed,  written,  printed,  or  pub- 
lished in  the  United  Kingdom,  and  entitled  to  copyright  therein  shall 
be  suspended  so  far  as  regards  such  colony." 


26o  THE   QUESTION   OF  COPYRIGHT. 

igo.  Although  the  Act  is  general  in  its  terms,  the  British  posses- 
sions in  North  America  were  specially  in  view  when  it  was  passed, 
and  for  the  following  reason  : — Between  this  country  and  the  United 
States  there  was  no  existing  copyright  treaty,  and  it  was  the  practice 
of  the  United  States  publishers  to  reprint  in  their  own  country  Eng- 
lish works  at  very  cheap  rates.  These  cheap  copies,  owing  to  various 
difficulties  in  giving  practical  effect  to  the  provisions  of  the  law  pro- 
hibiting the  importation,  were  largely  introduced  into  Your  Majesty's 
North  American  possessions. 

191.  Certain  colonies,  among  others  Canada,  made  what  was  at 
the  time  accepted  by  Your  Majesty  in  Council  as  sufficient  provision 
for  securing  the  rights  of  British  authors,  and  thus  brought  themselves 
under  the  Act. 

192.  The  provision  made  by  the  Canadian  legislature  was,  that 
American  i-eprinti  of  English  copyright  works  might  be  imported  into 
the  colony  on  payment  of  a  customs  duty  of  12^-  per  cent.,  which 
was  to  be  collected  by  the  Canadian  Government  and  paid  to  the 
British  Government  for  the  benefit  of  the  authors  interested.  Like 
provisions  were  made  in  other  colonies. 

193.  So  far  as  British  authors  and  owners  of  copyright  are  con- 
cerned, the  Act  has  proved  a  complete  failure.  Foreign  reprints  of 
copyright  works  have  been  largely  introduced  into  the  colonies,  and 
notably  American  reprints  into  the  Dominion  of  Canada,  but  no 
returns,  or  returns  of  an  absurdly  small  amount,  have  been  made  to 
the  authors  and  owners.  It  appears  from  official  reports  that  during 
the  ten  years  ending  in  1876,  the  amount  received  from  the  whole  of 
the  ninteeen  colonies  which  have  taken  advantage  of  the  Act  was 
only  1,155/.  13s.  2\d.,  of  which  1,084/.  I3*-  3?d-  was  received  from 
Canada  ;  and  that  of  these  colonies,  seven  paid  nothing  whatever  to 
the  authors,  while  six  now  and  then  paid  small  sums  amounting  to  a 
few  shillings. 

194.  These  very  unsatisfactory  results  of  the  Foreign  Reprints  Act, 
and  the  knowledge  that  the  works  of  British  authors,  in  which  there 
was  copyright  not  only  in  the  United  Kingdom  but  also  in  the  colo- 
nies, were  openly  reprinted  in  the  United  States,  and  imported  into 
Canada  without  payment  of  duty,  led  to  complaints  from  British 
authors  and  publishers ;  and  strong  efforts  were  made  to  obtain  the 
repeal  of  the  Act. 

195.  A  counter-complaint  was  advanced  by  the  Canadians.  They 
contended  that  although  they  might  import  and  sell  American  re- 


REPORT   OF   THE   BRITISH   COMMISSION.       26l 

prints  on  paying  the  duty,  they  were  not  allowed  to  republish  British 
works,  and  to  have  the  advantage  of  the  trade,  the  sole  benefit  of 
which  was,  in  effect,  secured  for  the  Americans.  In  defence  of 
themselves  against  the  charge  of  negligence  in  collecting  the  duty, 
they  alleged  that  owing  to  the  vast  extent  of  frontier  and  other  local 
causes,  and  also  from  the  neglect  of  English  owners  of  copyright  to 
give  timely  notice  of  copyright  works  to  the  local  authorities,  they 
had  been  unable  to  prevent  the  introduction  of  American  reprints  into 
the  Dominion. 

196.  The  Canadians  proposed  that  they  should  be  allowed  to  re- 
publish the  books  themselves  under  licenses  from  the  Governor-Gen- 
eral, and  that  the  publishers  so  licensed  should  pay  an  excise  duty  of 
12^  per  cent,  for  the  benefit  of  the  authors.  It  was  alleged  thnt  by 
these  means  the  Canadians  would  be  able  to  undersell  the  Americans, 
and  so  effectually  to  check  smuggling  ;  and  further  that  the  British 
author  would  be  secured  his  remuneration,  as  the  money  would  be 
certain  to  be  collected  in  the  form  of  an  excise  duty,  though  it  could 
not  be  collected  by  means  of  the  customs.  Objections,  however, 
were  made  to  the  proposal,  and  it  was  not  carried  out. 

197.  These  considerations  led  to  the  suggestion  that  republication 
should  be  allowed  in  Canada  under  the  authors'  sanction,  and  copy- 
right granted  to  the  authors  in  the  Dominion  ;  and  upon  this  a  ques- 
tion arose  whether  Canadian  editions,  which  would  be  probably  much 
cheaper  than  the  English,  should  be  allowed  to  be  imported  into  the 
United  Kingdom  and  the  other  colonies. 

198.  Matters  were  in  this  state  when  "  The  Copyright  Act  of  1875  " 
was  passed  by  the  Dominion  legislature.  The  Act  was  sent  over  in 
the  form  of  a  Bill  reserved  for  Your  Majesty's  assent  ;  but  as  doubts 
were  entertained  whether  the  Act  was  not  repugnant  to  Imperial  leg- 
islation, and  to  the  Order  in  Council  made  in  1868,  by  which  the 
prohibitions  against  importing  foreign  reprints  into  the  Dominion  of 
Canada  had  been  suspended,  power  was  given  to  Your  Majesty  by  an 
Imperial  Act  passed  in  1875  to  assent  to  the  Canadian  Bill,  and  thus 
make  it  law.     Your  Majesty's  assent  was  subsequently  given. 

199.  It  is  in  this  Imperial  Act  that  a  clause  will  be  found,  which 
has  been  strongly  objected  to  by  Mr.  Farrer  in  his  evidence  before  us, 
prohibiting  the  importation  into  the  United  Kingdom  of  Canadian 
reprints. 

200.  The  Canadian  Act  gave  to  any  person  domiciled  in  Canada, 
or  in  any  part  of  the  British  possessions,  or  being  a  citizen   of  any 


262  THE   QUESTION   OF   COPYRIGHT. 

country  having  an  international  copyright  treaty  with  the  United  King- 
dom, being  the  author  of  any  literary  or  artistic  work,  power  to  obtain 
copyright  in  Canada  for  28  years,  by  printing,  and  publishing,  or  re- 
printing, or  republishing,  or,  in  the  case  of  works  of  art,  by  produc- 
ing or  reproducing  his  work  in  Canada,  and  fulfilling  certain  specified 
conditions.  The  copyright  thus  capable  of  being  secured  by  British 
copyright  owners  is  in  addition  to  and  concurrent  with  the  copyright 
they  have  throughout  the  British  dominions  under  the  Imperial  Act. 

201.  The  Dominion  Act  has  been  in  force  for  so  short  a  time  that 
it  is  difficult  to  ascertain  its  full  effect  ;  but  from  a  return  obtained 
from  Canada  by  the  Secretary  of  State  for  the  Colonies  in  November 
1876,  it  appears  that  31  works  of  British  authors  had  been  published 
in  Canada  under  the  Act  up  to  that  date.  A  comparison  of  the  prices 
of  these  works  shows  that  if  the  English  editions  were  sold  in  Canada 
at  any  price  over  about  half  a  dollar,  or  2s.,  there  was  a  reduction 
more  or  less  considerable  in  the  price  of  the  Canadian  edition,  the 
reduction  in  one  instance  being  as  great  as  from  $12.60  or  2/.  nx, 
S>\d.  to  $1.50  or  6s.  i%d.  It  also  appears  that  of  many  of  the  books 
republished  in  Canada  under  the  Act  the  American  reprints  were,  as 
a  rule,  kept  out  of  the  Dominion  ;  and  that  the  prices  of  American 
reprints  sold  in  the  Dominion  were  higher  than  those  of  the  Cana- 
dian reprints. 

202.  We  have  thought  it  desirable  to  give  this  brief  sketch  of  the 
law  of  colonial  copyright,  as  it  enables  us  to  explain  more  clearly  the 
questions  we  have  had  to  consider.  The  remedies  we  propose  are 
intended  to  meet  the  grievance  put  forward  by  the  colonial  readers. 

203.  The  main  grievance,  as  we  have  already  pointed  out,  lies  in 
the  difficulty  experienced  by  the  colonists  in  procuring,  at  a  suffi- 
ciently cheap  price,  a  supply  of  English  copyright  books. 

204.  The  Canadian  Copyright  Act  of  1875  may  have  the  effect  in 
time  of  securing  cheap  editions  of  British  works  in  the  Dominion. 
But,  in  the  first  place  it  is  too  soon  to  judge  of  this,  and  no  similar 
Act  has,  as  yet,  been  passed  in  other  colonies  ;  and  in  the  second 
place,  it  is  questionable  whether  such  an  Act  would  work  at  all  in 
small  colonies. 

205.  We  may  at  once  state  that  we  do  not  propose  to  interfere  with 
the  Canadian  Copyright  Act,  1875,  or  with  the  principle  of  that  law. 

206.  We  recommend  that  the  difficulty  of  securing  a  supply  of 
English  literature  at  cheap  prices  for  colonial  readers  be  met  in  two 
ways  :  1st.  By  the  introduction  of  a  licensing  system  in  the  colonies  ; 


REPORT   OF   THE   BRITISH   COMMISSION.       263 

and  2d.     By  continuing,  though  with  alterations,   the  provisions  of 
the  Foreign  Reprints  Act. 

207.  In  proposing  the  introduction  of  a  licensing  system,  it  is  not 
intended  to  interfere  with  the  power  now  possessed  by  the  Colonial 
Legislatures  of  dealing  with  the  subject  of  copyright,  so  far  as  their 
own  colonies  are  concerned.  We  recommend  that  in  case  the  owner 
of  a  copyright  work  should  not  avail  himself  of  the  provisions  of  the 
copyright  law  (if  any)  in  a  colony,  and  in  case  no  adequate  provision 
be  made  by  republication  in  the  colony  or  otherwise,  within  a  rea- 
sonable time  after  publication  elsewhere,  for  a  supply  of  the  work 
sufficient  for  general  sale  and  circulation  in  the  colony,  a  license  may, 
upon  an  application,  be  granted  to  republish  the  work  in  the  colony, 
subject  to  a  royalty  in  favor  of  the  copyright  owner  of  not  less  than  a 
specified  sum  per  cent,  on  the  retail  price,  as  may  be  settled  by  any 
local  law.  Effective  provision  for  the  due  collection  and  transmission 
to  the  copyright  owner  of  such  royalty  should  be  made  by  such  law. 

208.  We  do  not  feel  that  we  can  be  more  definite  in  our  recom- 
mendation than  this,  nor  indeed  do  we  think  that  the  details  of  such  a 
law  could  be  settled  by  the  Imperial  Legislature.  We  should  prefer  to 
leave  the  settlement  of  such  details  to  special  legislation  in  each  colony. 

209.  With  regard  to  the  continuance  of  the  Foreign  Reprints  Act, 
we  have  already  stated  that  strong  efforts  have  been  made  to  procure 
its  repeal.  In  March  1870,  at  a  meeting  of  the  leading  authors  and 
publishers  over  which  the  late  Earl  Stanhope  presided,  the  following 
resolution  was  passed  :  ' '  That  a  representation  be  made  to  the  Right 
Honorable  the  First  Lord  of  the  Treasury,  pointing  out  the  great 
hardship  sustained  by  British  authors  and  publishers  from  the  opera- 
tion of  the  Imperial  Copyright  Act  of  1847,  and  stating  the  earnest 
desire  they  feel  that  Her  Majesty's  Government  may  deem  it  right 
to  propose  its  prompt  repeal." 

210.  We  are  fully  sensible  of  the  weight  that  must  attach  to  the 
opinion  of  persons  so  qualified  to  form  a  judgment  on  this  matter, 
but  upon  careful  consideration  of  the  subject  and  of  the  peculiar 
position  of  many  of  Your  Majesty's  colonies — and  upon  this  point  we 
would  refer  to  the  answers  returned  by  the  colonies  to  Lord  Kimber- 
ley's  Circular  Dispatch  of  the  29th  July  1873— we  are  not  prepared 
to  recommend  the  simple  repeal  of  the  Act  of  1847,  and  the  conse- 
quent determination  of  the  power  now  vested  in  Your  Majesty,  of 
allowing  the  introduction  of  foreign  reprints  into  colonies  which  have 
made  due  provision  for  securing  the  rights  of  British  authors. 


264  THE   QUESTION   OF   COPYRIGHT. 

211.  We  believe  that  although  the  system  of  republication  under 
a  license  may  be  well  adapted  to  some  of  the  larger  colonies,  which 
have  printing  and  publishing  firms  of  their  own,  and  which  could 
reprint  and  republish  for  themselves  with  every  prospect  of  fair  re- 
muneration, it  would  be  practically  inapplicable  in  the  case  of  many 
of  the  smaller  colonies.  These  latter  now  depend  almost  wholly  on 
foreign  reprints  for  a  supply  of  literature  ;  and  to  sweep  away  the 
Foreign  Reprints  Act  without  establishing  some  other  system  of  sup- 
ply would  be  to  deprive  them  in  a  great  measure  of  English  books. 

212.  But  we  are  of  opinion  that  it  has  been  proved  necessary  to 
amend  the  existing  law,  for  the  purpose  of  more  effectually  protect- 
ing the  rights  of  owners  of  copyright,  whilst  affording  to  colonial 
readers  the  means  of  making  themselves  acquainted  with  the  litera- 
ture of  the  day. 

213.  As  the  provisions  hitherto  made  in  the  different  colonies  to 
which  Orders  in  Council  have  been  applied,  have  failed  to  secure 
remuneration  to  proprietors  of  copyright,  we  recommend  that  power 
should  be  given  to  Your  Majesty  to  repeal  the  existing  Orders  in 
Council ;  and  that  no  future  Order  in  Council  should  be  made  under 
that  Act  until  sufficient  provision  has  been  made  by  local  law  for 
better  securing  the  payment  of  the  duty  upon  foreign  reprints  to  the 
owners  of  copyright  works. 

214.  Probably  it  will  be  desirable  to  grant  a  certain  period  to  the 
colonies,  for  the  purpose  of  enabling  them  to  propose  further  and 
better  provisions,  before  such  revocation  actually  takes  place.  In 
that  case,  however,  it  should  be  clearly  understood  that  Your  Majesty 
is  in  no  way  pledged,  by  the  grant  of  such  delay,  to  issue  any  fresh 
Order  in  Council  ;  and  power  should  be  given  to  Your  Majesty  in 
Council  to  revoke,  at  any  time,  any  future  Order  in  Council,  should 
the  provisions  of  the  colonial  law  prove  practically  insufficient. 

215.  It  is  perhaps  hardly  within  the  scope  of  this  Commission  to 
suggest  what  provisions  Your  Majesty  should  be  advised  to  consider 
sufficient,  within  the  meaning  of  the  Act,  to  secure  the  rights  of  the 
proprietors  of  copyright.  But  it  appears  to  us  that  possibly  some 
arrangement  might  be  effected,  by  which  all  foreign  reprints  should 
be  sent  to  certain  specified  places  in  the  colony,  and  should  be  there 
stamped  with  date  of  admission  upon  payment  of  the  duty,  which 
could  then  be  transmitted  here  to  the  Treasury  or  Board  cf  Trade 
for  the  author.  All  copies  of  foreign  reprints  not  so  stamped  should 
be  liable  to  seizure,  and  it  is  worthy  of  consideration  whether  some 


REPORT   OF   THE   BRITISH    COMMISSION.      265 

penalty  might  not  also  be  affixed  to  the   dealing  with   unstamped 
copies. 

216.  And,  having  regard  to  the  power  which  we  have  contem- 
plated, for  authors  to  obtain  colonial  copyright  by  republication  in 
the  colonies,  and  to  the  licensing  system  which  we  have  suggested, 
we  recommend  that  where  an  Order  in  Council  for  the  admission  of 
foreign  reprints  has  been  made,  such  reprints  should  not,  unless  with 
the  consent  of  the  owner  of  the  copyright,  be  imported  into  a  colony — 

1.  Where  the  owner  has  availed  himself  of  the  local  copyright  law, 

if  any  ; 

2.  Where  an    adequate   provision,  as    pointed  out    in    paragraph 

207,  has  been  made  ;  or, 

3.  After  there  has  been  a  republication  under  the  licensing  system. 

217.  A  subject  of  great  moment  with  reference  to  colonial  copy- 
right, is  the  propriety  of  permitting  the  introduction  of  colonial 
reprints  into  the  United  Kingdom.  This  question  has  given  rise  to 
much  discussion,  as  may  be  seen  by  reference  to  the  correspondence, 
which,  at  the  time  The  Canadian  Copyright  Act,  1875,  was  under 
consideration,  passed  between  the  Colonial  Office  and  the  Board  of 
Trade.  Ultimately  the  4th  section  of  that  Act  was  passed  by  which 
it  is  enacted,  that,  where  any  British  copyright  work  has  acquired 
copyright  in  Canada  under  the  colonial  Act  by  republication,  it  is 
unlawful  for  any  person  other  than  the  owner  to  import  Canadian 
reprints  into  the  United  Kingdom.  This  provision  is  analogous  to 
that  in  force  in  the  case  of  books  reprinted  in  foreign  countries. 

218.  We  have  been  urged  to  recommend  the  repeal  of  that  section, 
so  far  at  all  events  as  to  admit  the  importation  into  the  United  King- 
dom of  copies  published  with  the  consent  of  the  copyright  owner. 

219.  We  may  state  generally  that  authors  and  publishers,  who  are 
the  persons  most  interested  in  copyrights,  are  strongly  opposed  to  the 
introduction  of  colonial  reprints  into  the  United  Kingdom,  on  the 
following  grounds  : — That  the  cheaper  price  of  those  reprints  would 
cause  great  pecuniary  loss  to  the  owners  of  copyrights  : — that  the 
present  system  of  trade,  which  has  been  found  most  remunerative  to 
authors  and  publishers,  would  be  disarranged  : — and  that  publishers 
would  not  be  willing  or  able  to  offer  so  much  to  authors  for  their  works. 

220.  It  is  argued  that,  if  importation  is  allowed,  no  copyright 
owner  will  consent  to  republication  in  the  colonies  by  himself  or 
others,  because  all  such  republications,  being  made  with  his  consent, 


266  THE   QUESTION   OF   COPYRIGHT. 

would  be  liable  to  be  introduced  here,  and  that  the  colonial  readers 
would  therefore  suffer  to  a  certain  extent  by  the  alteration  in  the  law. 
This  last  argument  will,  however,  lose  its  force,  if  effect  is  given  to 
our  suggestion  of  permitting  republication  in  the  Colonies  under  a 
licensing  system. 

221.  The  arguments  in  favor  of  admission  of  colonial  reprints  are 
based  on  consideration  of  the  public  interest,  which  is  alleged  to  be 
greatly  injured  by  the  high  prices  at  which  books  are  now  published 
— prices  that  are  altogether  prohibitory  to  the  great  mass  of  the 
reading  public  ;  and  it  is  said  that  if  the  cheaper  colonial  editions 
were  to  be  allowed  in  this  country,  the  necessary  effect  would  be  that 
prices  generally  would  be  greatly  reduced. 

222.  It  is  also  urged  that  if  the  law  gives  British  copyright  owners 
the  benefit  of  copyright  throughout  the  empire,  and  the  exclusive 
command  of  the  colonial  market,  it  is  unfair  to  the  British  public 
that  they  should  be  deprived  of  the  advantage  they  might  derive 
from  that  extended  copyright,  and  that  they  should  be  the  only  sec- 
tion of  Your  Majesty's  subjects  who  are  debarred  from  participating 
in  the  advantages  of  cheap  colonial  editions. 

223.  It  is  also  said  that  it  is  a  mistake  to  suppose  that  authors 
would  really  be  injured  by  the  introduction  into  the  United  King- 
dom of  the  colonial  editions,  for  that  the  profit  which  would  be  de- 
rived from  the  extended  market  would  more  than  compensate  for  the 
loss  resulting  from  publication  at  lower  prices.  Thus  the  public 
would  derive  the  benefit  of  cheap  literature,  while  authors  would 
reap  profit  equal  to  or  greater  than  that  they  now  enjoy. 

224.  The  witness  who  principally  advocated  the  introduction  of 
these  reprints  was  Mr.  Farrer,  the  Permanent  Secretary  to  the  Board 
of  Trade,  which  is  the  department  specially  charged  with  legislation 
affecting  copyright.  Having  regard  to  the  great  attention  he  has 
devoted  to  the  subject  and  to  his  official  position,  we  desire  to  state 
that  we  think  his  opinions  are  entitled  to  much  consideration.  The 
arguments  adduced  by  him  will  be  found  fully  stated  in  his  evidence. 

225.  We  have  carefully  weighed  this  evidence  with  the  views  of 
other  persons  who  are  opposed  to  the  introduction  of  colonial  reprints 
into  the  United  Kingdom  ;  and  on  the  whole  we  think  that  the  ad- 
mission of  such  reprints  would  probably  operate  injuriously  towards 
British  authors  and  publishers,  and  that  it  is  doubtful  if  it  would  be 
attended  in  many  cases  with  the  result  anticipated  by  Mr.  Farrer, 
that  is  to  say,  the  cheapening  of  books  for  home  consumption.     We 


REPORT   OF   THE   BRITISH   COMMISSION.       267 

think  the  almost  certain  result  would  be,  that  it  would  operate  as  a 
preventive  to  republication  in  the  colonies  by  authors  themselves, 
so  that,  if  no  publisher  republished  under  the  licensing  system, 
the  colonial  reader  would  be  in  no  better  condition  than  he  is  now. 

226.  We  therefore  think  that  colonial  reprints  of  copyright  works 
first  published  in  the  United  Kingdom  should  not  be  admitted  into 
the  United  Kingdom  without  the  consent  of  the  copyright  owners  ; 
and,  conversely,  that  reprints  in  the  United  Kingdom  of  copyright 
works  first  published  in  any  colony  should  not  be  admitted  into  such 
colony  without  the  consent  of  the  copyright  owners. 

227.  It  will  have  been  observed  that  in  suggesting  the  above  alter- 
ations in  the  existing  law  of  copyright,  we  have  not  proposed  to 
interfere  with  the  existing  powers  of  colonial  legislatures  to  deal 
with  this  subject.  An  author  who  first  publishes  in  a  colony  should 
only  be  entitled  to  secure  copyright  throughout  the  British  dominions, 
if  he  complies  with  the  requirements  of  the  copyright  law  for  the 
time  being  of  that  colony.  It  will  rest,  therefore,  with  each  colonial 
legislature  to  determine  the  nature  of  those  requirements,  such  as 
registration,  deposit  of  copy,  and  so  forth  ;  and  we  cannot  doubt 
that  they  will  be  alive  to  the  expediency  of  adopting  for  the  colony, 
so  far  as  it  is  practicable,  the  principal  provisions  of  the  Imperial 
Act,  which,  if  effect  be  given  to  our  suggestions,  will,  as  to  all  such 
matters  of  detail,  be  hereafter  limited  to  the  United  Kingdom.  By 
this  means  uniformity  of  practice  will  be  secured  throughout  Your 
Majesty's  dominions,  and  certain  difficulties  will  be  avoided,  which 
might  arise  if,  for  example,  registration  were  in  some  colonies  com- 
pulsory, and  in  others  voluntary. 

228.  But  important  as  uniformity  is  in  matters  of  detail,  it  be- 
comes still  more  important  in  respect  to  the  term  to  be  fixed  for  the 
duration  of  copyright.  As  the  law  now  stands,  we  apprehend  that 
each  colony  has  a  right  to  decide  what  shall  be  the  term  during 
which  an  author  who  publishes  in  the  colony  shall  have  copyright 
therein.  The  exercise  of  this  power  does  not,  it  is  true,  override  the 
provisions  of  the  Imperial  Act,  which  gives  copyright  in  such  colony 
to  a  work  first  published  in  the  United  Kingdom,  but  the  existence 
of  this  double  term  is  inconvenient.  If,  as  we  recommend,  publica- 
tion in  any  colony  shall  for  the  future  secure  copyright  throughout 
all  Your  Majesty's  dominions,  in  the  same  way  and  for  the  same 
term  as  if  the  work  had  been  first  published  in  this  country,  the 
necessity  for  fixing  a  term  for  duration  of  a  copyright  in  a  colony 


268  THE   QUESTION   OF   COPYRIGHT. 

will  practically  cease.  In  truth  the  difference  between  colonial  and 
imperial  copyright  will  disappear,  as  colonial  copyright  will  merge 
into  imperial  copyright  ;  and  we  may  fairly  assume  that  where,  as 
in  Canada  and  at  the  Cape,  a  term  has  been  fixed  for  copyright  in 
the  colony  different  from  that  fixed  by  the  Imperial  Act,  the  colonial 
legislature  will  be  ready  to  repeal  pro  tanto  the  colonial  law,  and  to 
confine  legislation  to  matters  of  detail. 

229.  Should,  however,  our  anticipations  on  this  point  be  incorrect, 
it  will  become  a  question  whether,  with  a  view  to  secure  uniformity, 
the  concession  to  any  colony  might  not  be  made  conditional  upon 
the  adoption  by  the  legislature  of  such  colony  of  the  same  term  as 
that  fixed  for  the  time  being  by  the  Imperial  Act. 

230.  In  concluding  our  remarks  upon  this  part  of  the  subject,  we 
recommend  that  the  production  of  a  copy  of  the  colonial  register 
(if  any),  certified  by  some  duly  authorized  officer  in  that  behalf,  shall 
be  prifnd  facie  evidence  in  Your  Majesty's  Courts  of  compliance 
with  the  requirements  of  the  local  law,  and  of  the  title  to  copyright 
of  the  person  named  therein.  A  provision  to  this  effect  would  have 
to  be  made  by  the  different  colonial  legislatures  for  the  guidance  of 
colonial  courts. 

231.  It  has  been  suggested  to  us  that  some  re-registration,  or 
notice  of  the  original  registration,  should  be  made  in  England  of  a 
work  published  in  a  colony,  and  that  a  copy  of  every  work  published 
in  the  colonies  should  be  deposited  at  the  British  Museum,  within  a 
certain  time  after  publication.  Upon  the  whole  we  are  not  disposed 
to  recommend  the  adoption  of  either  of  these  suggestions.  Publi- 
cation in  a  colony  will  give  copyright  throughout  the  British  domin- 
ions, and  if  re-registration  of  the  work  is  desirable  in  England,  it  is 
equally  so  in  all  the  other  British  possessions  in  which  the  work  ob- 
tains copyright.  But  to  require  such  a  general  re-registration  would 
throw  a  considerable  burden  upon  the  owners  of  colonial  copyright, 
and  it  appears  to  us  not  unreasonable  to  call  upon  a  person  who 
desires  to  reprint  a  work  which  has  already  been  published  to  take 
the  necessary  steps  to  ascertain  whether  the  work  has  been  duly  pub- 
lished and,  if  necessary,  registered  in  the  place  of  publication,  and 
whether  the  term  of  copyright  has  expired.  Should,  however,  a 
notice  of  registration  be  thought  desirable,  we  suggest  that  it  should 
be  officially  given  by  the  registering  department  in  the  United 
Kingdom  or  colony  ;  and  the  fee  for  original  registration  might  be 
made  to  cover  the  expenses  of  giving  such  notice. 


REPORT   OF   THE   BRITISH    COMMISSION.       269 

232.  As  regards  the  second  suggestion,  we  are  of  opinion  that  the 
Trustees  of  the  British  Museum  may  fairly  be  expected  to  purchase 
such  colonial  works  as  they  want,  considering  that  the  author  or 
owner  of  the  copyright  will  doubtless  be  required  by  local  law  to 
deposit  a  copy  in  the  place  of  publication.  Indeed  it  was  stated  to 
us  by  officers  of  the  British  Museum  that  many  such  works  are  now 
purchased. 

INTERNATIONAL   COPYRIGHT. 

The  American  Question. 

233.  As  to  continental  nations,  few  questions  have,  in  the  course 
of  our  inquiry,  been  raised  with  regard  to  the  general  regulations  of 
international  copyright  ;  but  we  find  it  to  be  impossible  to  exclude 
from  examination  the  present  condition  of  the  copyright  question 
between  Great  Britain  and  the  United  States.  There  is  no  inter- 
national protection  of  copyright  as  between  ourselves  and  the 
Americans,  although,  owing  to  causes  to  be  presently  referred  to, 
the  United  States  is  of  all  nations  the  one  in  which  British  authors 
are  most  concerned,  —  the  nation  in  regard  to  which  the  absence  of  a 
copyright  convention  gives  rise  to  the  greatest  hardships. 

234.  When  deciding  upon  the  terms  in  which  we  should  report 
upon  this  subject,  we  have  felt  the  extreme  delicacy  of  our  position 
in  expressing  an  opinion  upon  the  policy  and  laws  of  a  friendly 
nation,  with  regard  to  which  a  keen  sense  of  injury  is  entertained  by 
British  authors.  Nevertheless,  we  have  deemed  it  our  duty  to  state 
the  facts  brought  to  our  knowledge,  and  frankly  to  draw  the  conclu- 
sions to  which  they  lead. 

235.  Although  with  most  of  the  nations  of  the  continent  treaties 
have  been  made,  whereby  reciprocal  protection  has  been  secured  for 
the  authors  of  those  countries  and  Your  Majesty's  subjects,  it  has 
hitherto  been  found  impracticable  to  arrange  any  terms  with  the 
American  people.  We  proceed  to  indicate  what  in  our  view  are  the 
difficulties  which  have  impeded  a  settlement. 

236.  The  main  difficulty  undoubtedly  arises  from  the  fact  that, 
although  the  language  of  the  two  countries  is  identical,  the  original 
works  published  in  America  are,  as  yet,  less  numerous  than  those 
published  in  Great  Britain.  This  naturally  affords  a  temptation  to 
the  Americans  to  take  advantage  of  the  works  of  the  older  country, 
and  at  the  same  time  tends  to  diminish  the  inducement  to  publish 


270  THE   QUESTION   OF   COPYRIGHT. 

original  works.  It  is  the  opinion  of  some  of  those  who  gave  evi- 
dence on  this  subject,  and  it  appears  to  be  plain,  that  the  effect  of 
the  existing  state  of  things  is  to  check  the  growth  of  American  lit- 
erature, since  it  is  impossible  for  American  authors  to  contend  at  a 
profit  with  a  constant  supply  of  works,  the  use  of  which  costs  the 
American  publisher  little  or  nothing. 

237.  Were  there  in  American  law  no  recognition  of  the  rights  of 
authors,  no  copyright  legislation,  the  position  of  the  United  States 
would  be  logical.  But  they  have  copyright  laws  ;  they  afford  pro- 
tection to  citizen  or  resident  authors,  while  they  exclude  all  others 
from  the  benefit  of  that  protection.  The  position  of  the  American 
people  in  this  respect  is  the  more  striking,  from  the  circumstance 
that,  with  regard  to  the  analogous  right  of  patents  for  inventions, 
they  have  entered  into  a  treaty  with  this  country  for  the  reciprocal 
protection  of  inventors. 

238.  Great  Britain  is  the  nation  which  naturally  suffers  the  most 
from  this  policy.  The  works  of  her  authors  and  artists  may  be  and 
generally  are  taken  without  leave  by  American  publishers,  sometimes 
mutilated,  issued  at  cheap  rates  to  a  population  of  forty  millions, 
perhaps  the  most  active  readers  in  the  world,  and  not  seldom  in 
forms  objectionable  to  the  feelings  of  the  original  author  or  artist. 

239.  Incidentally,  moreover,  the  injury  is  intensified.  The  circu- 
lation of  such  reprints  is  not  confined  to  the  United  States.  They 
are  exported  to  British  colonies,  and  particularly  to  Canada,  in  all 
of  which  the  authors  are  theoretically  protected  by  the  Imperial  law. 
The  attempts  which  were  made,  by  legalizing  the  introduction  of 
these  reprints  into  Canada,  to  secure  a  fair  remuneration  to  British 
copyright  owners  have,  as  we  have  shown,  completely  failed. 

240.  This  system  of  reproduction  is  not  confined  to  books,  but 
extends  to  music  and  the  drama,  and  we  have  been  told  that  it  is  not 
an  uncommon  thing  when  a  new  play  by  an  author  of  eminence  is 
produced  in  London,  for  shorthand  writers  to  attend  and  take  down 
the  words  of  the  play  for  transmission  to  the  United  States. 

241.  But  though  there  is  no  law  in  the  United  States  to  protect  a 
foreign  work  from  republication  by  any  number  of  publishers,  the 
natural  result  of  general  publication  and  rivalry  was  to  make  the 
competition  which  arose  disastrous  to  those  engaged  in  it.  Firms  of 
eminence  and  respectability  rivaled  each  other  in  the  efforts  of  their 
agents  in  England  to  secure  early  sheets  of  important  works,  but 
when  the  sheets  were  obtained,  and  an  edition  issued  at  a  moderate 
price,  some  other  firm  would  undertake  to  supply  the  public  with 


REPORT   OF   THE  BRITISH   COMMISSION.       271 

the  same  article  at  a  lesser  rate.  American  publishers  were  thus 
obliged  to  take  steps  for  their  own  protection.  This  was  effected  by 
an  arrangement  among  themselves.  The  terms  of  this  understand- 
ing are,  that  the  trade  generally  will  recognize  the  priority  of  right 
to  republication  of  a  British  work  as  existing  in  the  American  pub- 
lisher who  can  secure  priority  of  issue  in  the  United  States.  This 
priority  may  be  secured  either  by  an  arrangement  with  the  author,  or 
in  any  other  way.  The  understanding,  however,  is  not  legally  binding, 
and  is  rather  a  result  of  convenience  and  of  a  growing  disposition 
to  recognize  the  claims  of  British  authors,  than  of  actual  agreement. 

242.  The  effect  of  this  trade  understanding  has  no  doubt  been 
profitable  to  a  certain  number  of  British  copyright  owners,  since, 
now  that  American  publishers  are  practically  secured  from  competi- 
tion at  home,  it  is  worth  while  for  them  to  rival  each  other  abroad 
in  their  offers  for  early  sheets  of  important  works.  We  are  assured 
that  there  are  cases  in  which  authors  reap  substantial  results  from 
these  arrangements,  and  instances  are  even  known  in  which  an  Eng- 
lish author's  returns  from  the  United  States  exceed  the  profits  of  his 
British  sale,  but  in  the  case  of  a  successful  book  by  a  new  author  it 
would  appear  that  this  understanding  affords  no  protection.  Even 
in  the  case  of  eminent  men,  we  have  no  reason  to  believe  that  the 
arrangements  possible  under  the  existing  conditions  are  at  all  equiv- 
alent to  the  returns  which  they  would  secure  under  a  copyright  con- 
vention between  Your  Majesty  and  the  United  States. 

243.  We  may  remark  in  this  place  that  as  authors  of  books  in 
some  cases  obtain  payment  for  early  sheets  from  American  publish- 
ers, so  also  dramatic  authors  of  note  sometimes  obtain  remuneration 
for  the  right  to  perform  their  plays.  There  appears,  however,  to  be  a 
difference  in  the  law  relating  to  books  and  plays  in  the  United  States  ; 
for  although  the  English  author  of  a  book  can  give  no  copyright  to  an 
American  publisher,  yet  it  is  stated  that  the  author  of  an  English  play 
can  give  an  American  theatrical  manager  a  right  of  representation,  if  the 
play  has  not  been  published  anywhere  as  a  book,  and  for  this  purpose  a 
distinction  is  made  between  such  publication  and  public  performance. 

244.  It  is,  without  doubt,  a  general  opinion  that  a  copyright  con- 
vention with  the  United  States  is  most  desirable.  We  have,  there- 
fore, endeavored  during  our  inquiry  to  ascertain  the  feeling  of  Amer- 
icans on  the  subject,  and  wherein,  if  at  all,  their  interests  would  be 
prejudiced.  We  have  also  endeavored  to  find  out  what  practical 
difficulty  there  is  in  the  way  of  such  a  convention,  and  if  by  any 
means  such  difficulty  can  be  surmounted. 


272  THE   QUESTION  OF  COPYRIGHT. 

245.  It  may  be  stated  that  American  authors  have  not  the  same 
need  of  a  convention  as  those  of  Great  Britain,  since  our  law  affords 
copyright  protection  throughout  the  British  dominions  to  foreigners 
as  well  as  to  Your  Majesty's  subjects,  provided  they  publish  their 
books  in  the  United  Kingdom  before  bringing  them  out  elsewhere, 
while  the  American  law,  unlike  ours,  does  not  make  first  publication 
at  home  a  condition  for  obtaining  copyright.  It  is  consequently  the 
practice  of  some  American  authors  to  publish  their  books  first  in 
England,  and  so  to  obtain  British  copyright,  and  then  to  republish 
them  in  the  United  States  and  obtain  American  copyright,  or  to 
publish  in  the  two  countries  almost  simultaneously. 

246.  We  have  it  in  evidence  from  Mr.  Putnam,  a  member  of  a 
large  American  publishing  firm,  that  American  authors  are  unani- 
mous as  to  the  advantage  of  international  copyright  between  the 
United  States  and  this  country.  We  have  also  been  told  by  another 
American  witness  that  as  publishers  can  bring  out  reprints  of  Eng- 
lish books  without  paying  the  authors,  it  is  so  much  more  to  their 
interest  to  do  so  than  to  pay  American  authors,  that  they  frequently 
refuse  to  publish  American  works  unless  at  a  low  rate  of  payment. 
Hence  it  appears  that,  in  the  opinion  of  many  Americans,  interna- 
tional copyright  is  desirable  for  American  authors. 

247.  This  question  has  been  before  the  United  States  legislature 
on  more  than  one  occasion,  and  the  Senate  has  twice  agreed  in  a 
recommendation  made  to  them  by  the  Government  on  the  subject. 

248.  We  are  therefore  satisfied  that,  though  there  are  other  ob- 
stacles, the  most  active  opposition  in  the  United  States  arises  from 
the  publishing  and  printing  interests.  It  is  feared  that  if  there  were 
international  copyright,  British  authors  would  be  able  to  select  their 
own  mode  of  manufacturing  their  books,  and  to  choose  their  own 
publishers,  and  that  they  would  in  many  cases  have  their  books 
printed  in  this  country,  and  perhaps  prepared  for  sale,  so  as  to  avoid 
the  expense  of  producing  them  in  America.  Moreover,  the  Ameri- 
can publisher  fears  the  competition  of  the  English  publisher,  because 
at  the  present  time  books  cannot  be  as  cheaply  manufactured  in  the 
United  States  as  in  Great  Britain  ;  and,  but  for  the  protective  tariff, 
there  would  no  doubt  be  a  great  inducement  to  British  publishers  to 
compete  with  those  of  America  in  the  large  and  important  market  of 
the  United  States. 

249.  These  fears  have  indeed  been  urged  with  a  discouraging 
effect  upon  the  negotiations  and  proposals  for  international  copy- 
right, and  have  induced  the  Americans  to  claim  that  the  privilege  of 


REPORT  OF  THE  BRITISH   COMMISSION.       273 

copyright  in  the  United  States  should  only  be  granted  on  condition 
that  the  book  is  wholly  re-manufactured  and  republished  in  America. 
On  the  other  hand  the  British  copyright  owner  feels  that  such  condi- 
tions would  lead,  in  many  cases,  to  a  useless  outlay  for  the  re-manufact- 
ure of  stereotype  plates  and  the  reproduction  of  illustrations,  practically 
at  his  expense  and  to  his  loss,  because  this  outlay  would  have  to  be 
taken  into  account  by  the  publisher  in  considering  the  sum  he  could 
afford  to  pay  for  authorship.  While  the  English  author  desires  not  to 
be  restricted  in  the  selection  of  a  publisher,  he  apparently  does  not 
care  much  whether  the  publisher  be  an  American  or  an  Englishman. 

250.  Although  it  has  hitherto  been  the  practice,  we  believe,  of 
Your  Majesty's  Government  to  make  international  copyright  treaties 
only  with  countries  which  are  willing  to  give  British  subjects  the  full 
advantage  of  their  domestic  copyright  laws,  untrammeled  by  com- 
mercial restrictions,  in  exchange  for  the  protection  afforded  to  their 
subjects  by  our  own  copyright  laws,  yet  we  think  it  not  unreason- 
able for  the  American  people  to  wish  to  insure  the  publication  of 
editions  suited  to  their  large  and  peculiar  market,  if  they  enter  into 
a  copyright  treaty  with  this  country.  On  the  whole,  therefore,  we 
are  of  opinion  that  an  arrangement  by  which  British  copyright 
owners  could  acquire  United  States  copyright  by  reprinting  and 
republishing  their  books  in  America,  but  without  being  put  under 
the  condition  of  reproducing  the  illustrations  or  re-manufacturing 
the  stereotype  plates  there,  would  not  be  unsatisfactory  to  Your 
Majesty's  subjects,  and  that  it  would  be  looked  upon  more  favorably 
in  the  United  States  than  any  other  plan  now  before  us. 

251.  It  has  been  suggested  to  us  that  this  country  would  be  justi- 
fied in  taking  steps  of  a  retaliatory  character,  with  a  view  of  enforc- 
ing, incidentally,  that  protection  from  the  United  States  which  we 
accord  to  them.  This  might  be  done  by  withdrawing  from  the 
Americans  the  privilege  of  copyright  on  first  publication  in  this 
country.  We  have,  however,  come  to  the  conclusion  that,  on  the 
highest  public  grounds  of  policy  and  expediency,  it  is  advisable  that 
our  law  should  be  based  on  correct  principles,  irrespective  of  the 
opinions  or  the  policy  of  other  nations.  We  admit  the  propriety  of 
protecting  copyright,  and  it  appears  to  us  that  the  principle  of  copy- 
right, if  admitted,  is  one  of  universal  application.  We  therefore 
recommend  that  this  country  should  pursue  the  policy  of  recognizing 
the  author's  rights,  irrespective  of  nationality. 

****** 
294.   In  concluding  our  labors  we  beg  leave  to  express  our  hope 
18 


274  THE   QUESTION   OF   COPYRIGHT. 

that  we  have  duly  considered  and  made  our  report  upon  all  the  mat- 
ters intended  to  be  referred  to  us  by  Your  Majesty's  Commission. 
We  are  conscious  that  there  may  be  points  of  detail  upon  which  we 
have  not  touched,  but  these,  if  noticed  by  us,  would  have  lengthened 
our  Report,  without,  as  we  think,  affording  any  substantial  assistance 
to  those  upon  whom  the  duty  of  legislating  may  hereafter  devolve. 

All  which  is  humbly  submitted  to  Your  Majesty's  gracious  con- 
sideration. 

Dated  the  24th  day  of  May  1878. 

JOHN    MANNERS. 

Subject  to  my  Dissent  from  a  part  of  paragraph  150. 

DEVON. 

CHARLES    LAWRENCE   YOUNG. 

Subject  to  my  Note  appended  hereto. 

H.  T.   HOLLAND. 
JOHN    ROSE. 

Subject  to  Dissent  and  Separate  Report. 

H.  DRUMMOND   WOLFF. 

Subject  to  my  Separate  Report  and  Dissent  from  part 
of  paragraph  150. 

J.  F.   STEPHEN. 

Subject  to  a  Note  appended  hereto. 

JULIUS   BENEDICT. 

F.  HERSCHELL. 

EDWARD  JENKINS. 

Subject  to  my  Separate  Report. 

WM.   SMITH. 

Subject  to  my  Dissent  from  a  part  of  paragraph  150. 

J.  A.  FROUDE. 
ANTHONY  TROLLOPE. 

Subject  to  my   Note  of  Dissent  as  to  paragraphs  153 
and  154. 
FREDERICK   RICHARD   DALDY. 

Subject  to  my  Note  of  Dissent  as  to  paragraphs  147 
and  154. 

For  the  Notes  of  Dissent  referred  to  by  certain  of  the  signers, 
space  for  which  could  not  conveniently  be  found  in  this  volume,  the 
reader  is  referred  to  the  Report  of  the  Commission  contained  in  the 
Blue  Book,  No.  2036,  series  of  1878. — Editor. 


XV. 

THE  COPYRIGHT  BILL  OF  THE  BRITISH 
SOCIETY  OF  AUTHORS,  INTRODUCED 
INTO  THE  HOUSE  OF  LORDS,  NO- 
VEMBER 26TH,  1890.  BY  LORD  MONKS- 
WELL.1 

GENERAL   PROVISIONS   AND    LITERARY    COPYRIGHT. 

6.  This  Act  shall,  except  when  expressly  provided  to  the  contrary, 
apply  only  to  copyright  works  other  than  paintings  and  sculpture  first 
published  after,  and  to  paintings  and  sculpture  which  shall  be  or 
shall  have  been  made,  and  which  shall  not  have  been  sold  or  dis- 
posed of  before  the  passing  of  this  Act,  and  not  to  copyrights  existing 
at  the  commencement,  nor  to  such  works  published,  sold,  or  disposed 
of  respectively  before  the  commencement  of  this  Act,  nor  to  any 
copyright  to  which  a  person  may  be  entitled  under  any  law  of  a  British 
possession  ;  and  all  expressions  in  this  Act  referring  to  copyright 
shall,  unless  the  context  otherwise  requires,  be  construed  as  referring 
to  copyright  under  this  Act  only,  and  all  rights  and  remedies  to  which 
a  person  may  be  entitled  under  this  Act  shall  be  in  addition  to  and 
not  in  derogation  of  any  rights  and  remedies  to  which  he  may  be 
entitled  in  any  British  possession  under  the  law  of  that  possession. 

7. — (1.)  The  copyright  or  performing  right  which  at  the  time  of  the 
passing  of  this  Act  shall  be  subsisting  in  any  book  or  other  subject 
of  copyright  or  performing  right  theretofore  published,  sold,  or  dis- 
posed of  (as  the  case  may  be),  shall  endure  for  the  term  limited  by 
the  existing  enactments,  or  for  the  term  fixed  by  this  Act,  which- 
ever is  the  longer,  and  shall  be  the  property  of  the  person  who  at  the 
time  of  passing  this  Act  shall  be  the  proprietor  of  such  copyright  or 
performing  right. 

1  Space  is  found  here  only  for  a  summary  of  the  more  important 
provisions. 


276  THE   QUESTION   OF   COPYRIGHT. 

(2.)  Provided  always,  that  in  all  cases  in  which  such  copyright  or 
performing  right  shall  belong  in  whole  or  in  part  to  a  publisher  or 
other  person  who  shall  have  acquired  it  for  other  consideration  than 
that  of  natural  love  and  affection,  such  copyright  or  performing  right 
shall  not  be  extended  by  this  Act,  but  shall  endure  for  the  term 
which  shall  subsist  therein  at  the  time  of  passing  this  Act,  and  no 
longer,  unless  the  original  copyright  owner,  if  he  shall  be  living,  or 
his  personal  representative  if  he  shall  be  dead,  and  the  proprietor  of 
such  copyright  or  performing  right  shall,  before  the  expiration  of 
such  term,  agree  to  accept  the  benefits  of  this  Act  in  respect  of  such 
book  or  other  subject  of  copyright  or  performing  right,  and  shall 
cause  a  minute  of  such  consent  in  the  form  in  that  behalf  given  in 
Schedule  Three  to  this  Act  to  be  entered  in  the  proper  register,  in 
which  case  such  copyright  or  performing  right  shall  endure  for  the 
term  fixed  by  this  Act,  and  shall  be  the  property  of  such  person  or 
persons  as  in  such  minute  shall  be  expressed. 

8.  The  Acts  or  parts  of  Acts  specified  in  the  First  Schedule  to  this 
Act  are  hereby  repealed  as  from  the  commencement  of  this  Act,  ex- 
cept with  relation  to  copyrights  already  existing,  and  works  other 
than  paintings  and  sculpture  already  published  at,  and  paintings  and 
sculpture  sold  or  disposed  of  before  the  commencement  of  this  Act, 
but  the  said  Acts  shall  remain  in  as  full  force  and  effect  for  the  pur- 
pose of  and  with  relation  to  such  copyrights  and  works  as  if  this  Act 
had  not  been  passed. 

9.  Copyright  and  performing  right  shall  respectively  be  deemed  to 
be  personal  property  in  England,  and  personal  and  movable  estate 
in  Scotland,  and  subject  to  the  provisions  of  this  Act,  shall  be  capable 
of  assignment  and  transmission  by  operation  of  law  as  such. 

10.  The  copyright  and  performing  right  in  a  posthumous  work  shall 
belong  in  the  case  of  a  book,  musical  composition,  dramatic  work, 
lecture,  piece  for  recitation,  address  or  sermon,  to  the  owner  of  the 
manuscript  ;  in  the  case  of  a  print  to  the  owner  of  the  plate,  stone  or 
other  thing  on  which  the  design  is  engraved  ;  and,  in  the  case  of  a 
photograph,  to  the  owner  of  the  negative. 

11. — (1.)  Every  assignment  of  copyright  or  performing  right  other 
than  an  assignment  by  operation  of  law  or  testamentary  disposition, 
shall  be  in  writing,  signed  by  the  assignor  or  his  agent,  duly  author- 
ized in  writing. 

(2.)  No  assignment  of  or  other  dealing  with  any  subject  of  copy- 
right or  performing  right  (other  than  an  assignment  by  operation  of 


THE   MONKSWELL   BILL.  2JJ 

law  or  testamentary  disposition)  shall  pass  the  copyright  or  perform- 
ing right  therein  unless  the  intention  to  assign  the  same  shall  be  ex- 
pressly evidenced  in  writing,  signed  as  aforesaid. 

12.  If  the  owner  of  the  copyright  or  performing  right  in  any  work 
shall  give  permission  to  another  person  to  copy,  imitate,  perform  or 
otherwise  repeat  such  work,  such  permission  shall  not,  in  the  absence 
of  an  express  agreement  to  the  contrary,  disentitle  such  owner  from 
giving  a  similar  or  any  other  permission  with  respect  to  the  same 
work,  even  though  the  first  person  to  whom  such  permission  was 
given  has  acquired  copyright  or  performing  right  in  his  work. 

13.  It  shall  be  lawful  for  Her  Majesty  in  Council,  on  complaint 
that  the  owner  of  copyright  in  any  book,  musical  composition,  or 
dramatic  work,  after  the  death  of  its  author  or  composer,  has  refused 
to  republish  or  allow  republication  or  public  performance  of  the  same, 
and  that  by  reason  of  such  refusal  such  book,  musical  composition  or 
dramatic  work  is  withheld  from  the  public,  to  grant  a  license  to  the 
complainant  to  republish  such  book,  musical  composition  or  dramatic 
work,  or  to  publicly  perform  or  procure  public  performances  of  the 
same  in  such  manner  and  subject  to  such  conditions  as  She  may 
think  fit. 

14.  After  the  commencement  of  this  Act  the  following  persons 
and  their  assigns,  whether  British  subjects  or  aliens,  shall,  subject  to 
the  provisions  of  this  Act,  be  entitled  to  copyright  therein,  through- 
out the  British  dominions,  provided  such  works  shall  have  been  first 
published  in  some  part  of  the  British  dominions  ;  that  is  to  say — 

(a.)  In  the  case  of  books,  the  author  of  any  original  work : 

(b.)  In  the  case  of  lectures,  pieces  for  recitation,  addresses  or  ser- 
mons, the  author  of  any  original  lecture,  piece  for  recitation,  address 
or  sermon : 

{c.)  Provided  always  that  if  a  British  subject  who,  under  the  pro- 
visions of  this  section,  would  otherwise  be  entitled  to  copyright  in 
any  work  shall  first  publish  such  work  in  some  state,  the  subjects 
whereof  shall  not,  at  the  date  of  such  publication,  be  entitled  to  copy- 
right in  the  British  dominions,  under  the  provisions  of  this  Actor  of 
the  Acts  mentioned  in  the  Second  Schedule  hereto,  he  shall,  on  re- 
publishing such  work  in  the  British  dominions  within  three  years  of 
such  first  publication,  be  entitled  to  copyright  therein  as  fully  as  if 
he  had  first  published  such  work  in  the  British  dominions. 

15.  Copyright  in  books,  lectures,  pieces  for  recitation,  addresses 
and  sermons  shall  endure  for  the  following  terms  : — 


278  THE   QUESTION   OF   COPYRIGHT. 

(1.)  If  the  work  is  published  in  the  lifetime  and  in  the  true  name 
of  the  original  copyright  owner,  for  the  life  of  the  original  copy- 
right owner,  and  thirty  years  after  the  end  of  the  year  in  which  his 
death  shall  take  place  : 

(2.)  If  the  work  is  written  or  composed  by  two  or  more  persons 
jointly,  for  the  life  of  the  longest  liver,  and  thirty  years  after  the  end 
of  the  year  in  which  his  death  shall  take  place: 

(3.)  In  the  case  of  posthumous  works,  for  thirty  years  from  the 
end  of  the  year  in  which  the  same  shall  have  been  first  published  : 

(4.)  In  the  case  of  an  anonymous  or  pseudonymous  work  for 
thirty  years  from  the  end  of  the  year  in  which  the  same  shall  have 
been  first  published  :  Provided  always  that  upon  the  original  copy- 
right owner  thereof  or  his  personal  representative,  during  the  con- 
tinuance of  the  said  term  of  thirty  years,  with  the  consent  of  the 
registered  copyright  owner,  making  a  declaration  of  the  true  name 
of  the  "  original  copyright  owner"  and  the  insertion  thereof,  in  the 
form  set  forth  in  the  Schedule  Three  of  this  Act  in  the  Register,  the 
copyright  shall,  subject  to  the  provisions  of  this  Act,  be  extended  to 
the  full  term  of  copyright  under  this  Act. 

16. — (1.)  In  the  case  of  any  article,  essay,  or  other  work  whatso- 
ever, being  the  subject  of  copyright,  first  published  in  and  forming 
part  of  a  collective  work  for  the  writing,  composition,  or  making  of 
which  the  original  copyright  owner  shall  have  been  paid  or  shall  be 
entitled  to  be  paid  by  the  proprietor  of  the  collective  work,  the  copy- 
right therein  shall,  subject  as  is  herein-after  mentioned,  and  in  the 
absence  of  any  agreement  to  the  contrary,  belong  to  such  proprie- 
tor for  the  term  of  thirty  years  next  after  the  end  of  the  year  in 
which  such  work  shall  have  been  first  published  : 

(2.)  Except  in  the  case  where  such  article,  essay,  or  other  work  is 
first  published  in  an  encyclopaedia,  the  original  copyright  owner 
thereof  and  his  assigns  shall,  after  the  term  of  three  years  from  the 
first  publication  thereof,  have  the  exclusive  right  to  publish  the  same 
in  a  separate  form,  and  shall  have  copyright  therein  as  a  separate 
publication  for  the  term  provided  by  section  fifteen  of  this  Act,  and, 
notwithstanding  anything  herein-before  contained,  the  proprietor  of 
the  collective  work  shall  not,  either  during  the  said  term  of  three 
years,  nor  afterwards  during  the  continuance  of  copyright  therein, 
be  entitled  to  publish  such  article,  essay,  or  other  work,  or  any  part 
thereof,  in  a  separate  form,  without  the  consent  in  writing  of  the 
original  copyright  owner  or  his  assigns. 


THE   MONKSWELL   BILL.  279 

17.  The  original  copyright  owner  of  any  article,  essay,  or  other 
work  first  published  in  and  forming  part  of  a  collective  work,  may 
register  the  same  as  a  separate  book  in  the  manner  herein-after  pro- 
vided (but  without  the  deposit  or  delivery  of  any  copy  thereof  at,  or 
for  the  use  of,  the  British  Museum  or  other  libraries),  and  shall  there- 
upon be  entitled  to  prevent  and  obtain  damages  for  the  publication 
of,  or  other  infringement  of  the  copyright  in  such  article,  essay,  or 
other  work  as  if  it  were  a  separate  book,  notwithstanding  that  the 
said  term  of  three  years  has  not  elapsed. 

18. — (1.)  The  copyright  in  a  joint  work  being  a  book,  lecture, 
piece  for  recitation,  address  or  sermon  shall,  in  the  absence  of  any 
agreement  to  the  contrary,  belong  to  the  persons  by  whom  the  same 
is  written  or  composed  jointly,  and  no  one  of  such  persons  shall  be 
deemed  to  be  the  owner  of  the  copyright  in  any  particular  part  of 
the  work  to  the  exclusion  of  the  other  or  others. 

(2.)  In  the  event  of  the  death  of  any  one  of  such  joint  owners, 
his  interest  shall,  in  the  absence  of  any  testamentary  or  other  dis- 
position to  the  contrary,  vest  in  the  person  or  persons  who  would  be 
entitled  to  the  copyright  in  any  work  of  which  he  had  been  the  sole 
writer  or  composer. 

19.  The  copyright  given  by  this  Act  in  respect  of  newspapers 
shall  extend  only  to  articles,  paragraphs,  communications,  and  other 
pans  which  are  compositions  of  a  literary  character,  and  not  to  any 
articles,  paragraphs,  communications,  or  other  parts  which  are  de- 
signed only  for  the  publication  of  news,  or  to  advertisements. 

20.  Whereas  by  an  Act  passed  in  the  fifteenth  year  of  King 
George  the  Third,  certain  copyrights  in  books  are  now,  or  might 
hereafter  become,  vested  in  the  Universities  of  Oxford  and  Cam- 
bridge, in  the  colleges  or  houses  of  learning  within  the  same,  the 
four  universities  of  Scotland,  or  the  several  colleges  of  Eton,  West- 
minster, and  Winchester,  in  perpetuity,  and  certain  special  and 
peculiar  penalties  are  provided  against  persons  who  infringe  such 
copyright  :  And  whereas  the  said  Act  is  repealed  by  this  Act,  but  it 
is  not  desirable  or  just  that  the  said  universities  and  colleges  should 
be  deprived  of  the  copyrights  they  already  possess,  by  virtue  of  the 
said  Act ;  be  it  enacted,  that  the  repeal  of  the  said  Act  shall  not 
operate  to  deprive  the  said  universities  and  colleges  of  any  copy- 
rights they  already  possess  in  perpetuity  under  the  said  Act,  and 
that  instead  of  the  special  and  peculiar  penalties  provided  by  the 
said  Act  the  said  universities  and  colleges  respectively  shall,  in  case 


280  THE   QUESTION   OF   COPYRIGHT. 

of  infringement  of  their  said  copyrights,  be  entitled  to  the  remedies 
and  to  enforce  the  forfeitures  and  penalties  provided  for  infringe- 
ment of  copyright  in  books  by  this  Act. 

21.  The  following  acts  by  any  person  other  than  the  copyright 
owner,  and  without  his  consent  in  writing,  shall  be  deemed  to 
be  infringements  of  copyright,  unless  such  acts  shall  be  specially 
permitted  by  the  terms  of  this  or  some  other  Act  not  hereby 
repealed : 

(i.)  In  the  case  of  books,  printing  or  otherwise  multiplying,  or 
causing  to  be  printed  or  otherwise  multiplied,  for  distribution,  sale, 
hire,  or  exportation,  copies,  abridgments,  or  translations  of  any 
copyright  book  or  any  part  thereof  ;  exporting  for  sale  or  hire  any 
such  copies,  abridgments,  or  translations,  printed  unlawfully  in  any 
part  of  the  British  dominions  ;  importing  any  such  copies,  abridg- 
ments, or  translations,  whether  printed  unlawfully  in  any  other  part 
of  the  British  dominions  or  printed  without  the  consent  of  the  copy- 
right owner  in  any  foreign  state  ;  or  knowing  such  copies  to  have 
been  so  printed  or  imported,  distributing,  selling,  publishing,  or 
exposing  them  for  sale  or  hire,  or  causing  or  permitting  them  to  be 
distributed,  sold,  published,  or  exposed  for  sale  or  hire  : 

(2.)  In  the  case  of  a  book  which  is  a  work  of  fiction  it  shall  also 
be  an  infringement  of  the  copyright  therein  if  any  person  shall, 
without  the  consent  of  the  owner  of  the  copyright,  take  the  dialogue, 
plot,  or  incidents  related  in  the  book,  and  use  them  for  or  convert 
them  into  or  adapt  them  for  a  dramatic  work,  or  knowing  such 
dramatic  work  to  have  been  so  made,  shall  permit  or  cause  public 
performance  of  the  same  : 

(3.)  In  the  case  of  lectures,  pieces  for  recitation,  addresses,  or 
sermons,  whether  before  or  after  they  are  published  in  print  by  the 
owner  of  the  copyright,  the  same  acts  as  herein-before  declared  to 
be  infringements  in  the  case  of  books,  and  if  they  be  not  published 
in  print,  by  the  owner  of  the  copyright,  re-delivering  them  or  caus- 
ing them  to  be  re-delivered  in  public. 

22.  Notwithstanding  anything  in  this  Act  contained,  the  making 
of  fair  and  moderate  extracts  from  a  book  in  which  there  is  subsist- 
ing copyright,  and  the  publication  thereof  in  any  other  work,  shall 
not  be  deemed  to  be  infringement  of  copyright  if  the  source  from 
which  the  extracts  have  been  taken  is  acknowledged. 

23.  It  shall  not  be  deemed  an  infringement  of  copyright  in  a  lect- 
ure, piece  for  recitation,  address,  or  sermon  to  report  the  same  in  a 


THE   MONKSWELL   BILL.  28l 

newspaper,  unless  the  person  delivering  the  same  shall  have  pre- 
viously given  notice  that  he  prohibits  the  same  being  reported. 

24.  For  the  purposes  of  this  Act  any  second  or  subsequent  edi- 
tion of  a  book  which  is  published  with  any  additions  or  alterations, 
whether  in  the  letterpress  or  in  the  maps  or  illustrations  belonging 
thereto,  shall  be  deemed  to  be  a  new  book. 

25- — (1.)  The  publisher  of  every  book  first  published  in  the 
United  Kingdom  shall  within  one  month  after  publication  deliver, 
at  his  own  expense,  a  copy  of  the  book  to  the  trustees  of  the 
British  Museum. 

(2.)  He  shall  also  within  the  same  time  deliver  at  his  own  expense 
a  copy  of  the  book  to,  or  in  accordance  with  the  directions  of,  the 
authority  having  the  control  of  each  of  the  following  libraries, 
namely :  the  Bodleian  Library  at  Oxford,  the  Public  Library  at 
Cambridge,  the  Library  of  the  Faculty  of  Advocates  at  Edinburgh, 
and  the  Library  of  the  Holy  and  Undivided  Trinity  of  Queen  Eliz- 
abeth near  Dublin,  or,  at  the  option  of  the  publisher,  to  the  regis- 
trar under  this  Act,  to  be  by  him  so  delivered. 

(3.)  The  copy  delivered  to  the  trustees  of  the  British  Museum 
shall  be  a  copy  of  the  whole  book  with  all  maps  and  illustrations 
belonging  thereto,  finished  and  colored  in  the  same  manner  as  the 
best  copies  of  the  book  are  published,  and  shall  be  bound,  sewed,  or 
stitched  together,  and  on  the  best  paper  on  which  the  book  is 
printed. 

(4.)  The  copy  delivered  to  the  other  authorities  mentioned  in  this 
section  shall  be  on  the  paper  on  which  the  largest  number  of  copies 
of  the  book  is  printed  for  sale,  and  shall  be  in  the  like  condition  as 
the  books  prepared  for  sale. 

(5.)  Delivery  of  a  copy  to  the  registrar  on  registration  under  this 
Act  shall,  for  the  purposes  of  this  section,  be  deemed  delivery  to 
the  trustees  of  the  British  Museum. 

(6.)  If  a  publisher  fails  to  comply  with  this  section,  he  shall  incur 
a  fine  not  exceeding  five  pounds  and  the  value  of  the  book,  and  this 
fine  shall  be  paid  to  the  trustees  or  authority  to  whom  the  book 
ought  to  be  delivered. 

26. — (1.)  There  shall  continue  to  be  charged  on  and  paid  out  of 
the  Consolidated  Fund  of  the  United  Kingdom  such  annual  com- 
pensation as  is  at  the  passing  of  this  Act  payable  in  pursuance  of 
any  Act  as  compensation  to  a  library  for  the  loss  of  the  right  to 
receive  gratuitous  copies  of  books. 


232  THE   QUESTION   OF   COPYRIGHT. 

(2.)  Such  compensation  shall  not  be  paid  to  a  library  in  any  year 
unless  the  Treasury  shall  be  satisfied  that  the  compensation  for  the 
previous  year  has  been  applied  in  the  purchase  of  books  for  the  use 
of  and  to  be  preserved  in  the  library. 


ANALYSIS   OF   THE    BILL. 
By  Sir  Frederick  Pollock. 

The  following  Memorandum  sets  out  its  contents, 
and  shows  the  various  authorities  for  the  changes 
in  present  legislation  suggested  by  the  Bill. 

Memorandum. 

This  Bill  is  intended  to  consolidate  and  amend  the  Law  of  Copy- 
right other  than  copyright  in  designs. 

The  existing  law  on  the  subject  consists  of  no  less  than  18  Acts  of 
Parliament,  besides  common  law  principles,  which  are  to  be  found 
only  by  searching  the  Law  Reports.  Owing  to  the  manner  in  which 
these  Acts  have  been  drawn,  the  law  is  in  many  cases  hardly  intel- 
ligible, and  is  full  of  arbitrary  distinctions  for  which  it  is  impossible 
to  find  a  reason.  (See  paragraphs  9  to  13  of  the  Report  of  the  Royal 
Commission  on  Copyright  of  187S.) 

For  instance,  the  term  of  copyright  in  books  is  the  life  of  the  author 
and  7  years,  or  42  years  from  publication,  whichever  period  is  the 
longer  ;  in  lectures,  when  printed  and  published,  the  term  is  proba- 
bly the  life  of  the  author  or  28  years  ;  in  engravings,  28  years  ;  and 
in  sculpture,  14  years,  with  a  possible  further  extension  for  another 
14  years  ;  while  the  term  of  copyright  in  music  and  lectures  which 
have  been  publicly  performed  or  delivered  but  not  printed  is  wholly 
uncertain. 

Again  the  necessity  for  and  effect  of  registration  is  entirely  differ- 
ent with  regard  to  (1)  books,  (2)  paintings,  (3)  dramatic  works. 

In  consolidating  these  enactments  (all  of  which  it  is  proposed  to 
repeal)  it  has  been  thought  advisable  to  deal  separately  with  the  vari- 
ous subjects  of  copyright,  viz.,  (1)  Literature,  (2)  Music  and  Dramatic 
Works,  and  (3)  Works  of  Art,  and  to  make  the  part  of  the  Bill  deal- 


THE   MONKSWELL   BILL.  283 

ing  with  each  of  these  as  far  as  possible  complete  in  itself.  This 
will  account  for  certain  repetitions  which  might  otherwise  seem  un- 
necessary. 

The  alterations  proposed  to  be  made  in  the  law  are  for  the  most 
part  those  suggested  in  the  Report  of  the  Royal  Commission  on  Copy- 
right of  1S78,  and  embodied  in  a  Bill  introduced  at  the  end  of  the 
Session  of  1879  by  Lord  John  Manners,  Viscount  Sandon,  and  the 
Attorney-General  on  behalf  of  the  then  Government.  References 
will  be  found  in  the  margin  of  the  present  Bill  both  to  the  Report  of 
the  Commission  and  the  Bill  of  1879. 

The  most  important  of  these  alterations  may  be  summarized  as 
follows  : — 

1.  A  uniform  term  of  copyright  is  introduced  for  all  classes  of 
work,  consisting  of  the  life  of  the  author  and  30  years  after  his 
death.  The  only  exceptions  are  in  the  cases  of  engravings  and 
photographs,  and  anonymous  and  pseudonymous  works  for  which, 
owing  to  the  difficulty  or  impossibility  of  identifying  the  author,  the 
term  is  to  be  30  years  only,  with  power  for  the  author  of  an  anony- 
mous or  pseudonymous  work  at  any  time  during  such  30  years  to 
declare  his  true  name  and  acquire  the  full  term  of  copyright. 

2.  The  period  after  which  the  author  of  an  article  or  essay  in  a 
collective  work  (other  than  an  encyclopaedia)  is  to  be  entitled  to  the 
right  of  separate  publication,  is  reduced  from  28  years  to  3  years. 

3.  The  right  to  make  an  abridgment  of  a  work  is  for  the  first 
time  expressly  recognized  as  part  of  the  copyright,  and  an  abridg- 
ment by  a  person  other  than  the  copyright  owner  is  made  an  infringe- 
ment of  copyright. 

4.  The  authors  of  works  of  fiction  are  given  the  exclusive  right  of 
dramatizing  the  same  as  part  of  their  copyright,  and  the  converse 
right  is  conferred  on  authors  of  dramatic  works. 

5.  The  exhibition  of  photographs  taken  on  commission,  except 
with  the  consent  of  the  person  for  whom  they  are  taken,  is  rendered 
illegal.1 

6.  Registration  is  made  compulsory  for  all  classes  of  work  in  which 
copyright  exists,  except  painting  and  sculpture  :  that  is  to  say,  no 
proceedings  for  infringement  or  otherwise  can  be  taken  before  regis- 
tration, nor  can  any  proceedings  be  taken  after  registration  in  respect 

1  At  present  it  seems  to  be  merely  a  matter  of  implied  contract  (see 
Pollard  vs.   The  Photographic  Co.,  40  Ch.  D.,  345). 


284  THE  QUESTION   OF  COPYRIGHT. 

of  anything  done  before  the  date  of  registration,  except  on  payment 
of  a  penalty.  This  penalty,  it  should  be  mentioned,  was  not  recom- 
mended by  the  Royal  Commission,  but  is  introduced  in  order  that  an 
accidental  omission  to  register  may  not  entirely  deprive  the  copyright 
owner  of  his  remedies.  Registration  of  paintings  and  sculpture  is 
made  optional  owing  to  their  being  so  frequently  subject  to  altera- 
tion that  it  is  practically  impossible  to  say  when  they  are  completed, 
so  as  to  be  capable  of  registration. 

7.  Provision  is  made  (in  Clause  89)  for  the  seizure  of  piratical 
copies  of  copyright  works  which  are  being  hawked  about  or  offered 
for  sale.  Some  such  provision  is  required  particularly  for  the  pro- 
tection of  works  of  Art,  and  was  recommended  by  the  Royal  Com- 
mission. 

The  part  of  the  Bill  which  relates  to  the  fine  arts  and  photography 
is  taken,  almost  without  alteration,  from  the  Copyright  (Works  of 
Fine  Art)  Bill  which  was  introduced  into  the  House  of  Commons  in 
the  session  of  18S6  by  Mr.  Hastings,  Mr.  Gregory,  and  Mr.  Agnew. 
That  Bill  received  the  general  approval  of  those  interested  in  the  fine 
arts  ;  and  although  it  does  not  altogether  follow  the  recommendations 
of  the  Royal  Commission,  there  does  not  appear  to  be  any  serious 
reason  against  adopting  its  provisions. 

The  part  of  the  Bill  which  relates  to  Foreign  and  Colonial  Copy- 
right is  practically  a  re-enactment  of  the  provisions  of  the  Interna- 
tional Copyright  Act,  1886,  which  was  passed  in  order  to  carry  into 
effect  the  "  Berne  Convention"  for  giving  to  authors  of  literary  and 
artistic  works  first  published  in  one  of  the  countries  parties  to  the 
Convention,  copyright  in  such  works  throughout  the  other  countries 
parties  to  the  Convention. 

By  the  earlier  parts  of  the  Bill,  the  same  rights  are  given  to  Colo- 
nial as  to  British  authors  ;  while  the  right  of  the  Colonial  Legislatures 
to  deal  with  the  subject  is  expressly  recognized  and  preserved.  The 
Foreign  Reprints  Act  of  1847  (10  and  II  Vict.  c.  95)  is  re-enacted  in 
the  form  adopted  in  the  Bill  of  1879,  but  it  has  not  been  found  possi- 
ble to  frame  provisions  for  the  introduction  of  any  such  licensing 
system  of  republication  in  the  Colonies  as  that  suggested  by  the 
Royal  Commission.  There  appear  to  be  great  difficulties  in  provid- 
ing for  the  practical  working  of  any  such  system,  and  even  if  they 
could  be  overcome,  it  is  felt  that  while  it  is  more  than  doubtful 
whether  the  colonial  reader  would  benefit  to  any  great  extent,  the 
British  copyright  owner  must  suffer  considerable  loss. 


THE   MONKSWELL   BILL.  285 

With  regard  to  registration,  the  Bill  (as  was  recommended  by  the 
Royal  Commission)  provides  for  the  establishment  of  a  Copyright 
Registration  Office,  under  the  control  of  Government,  in  lieu  of  the 
present  office  at  Stationers'  Hall,  established  under  5  and  6  Vict.  c. 
45.  This  office  has  even  under  the  present  law  been  found  inade- 
quate, and  would  be  still  more  so  upon  the  introduction  of  compul- 
sory registration  in  all  cases. 

It  is  felt,  however,  that  the  details  and  formalities  of  any  scheme 
of  registration  can  only  be  satisfactorily  settled  by  Government 
officials,  and  the  provisions  of  Part  V.  of  the  Bill  are  put  forward 
rather  by  way  of  suggestion  than  as  a  definitely  settled  scheme.  It 
will  probably  be  found  desirable  either  now  or  hereafter  to  combine 
the  Copyright  Registration  Office  with  the  Registry  of  Designs  and 
Trade  Marks,  and  this  part  of  the  Bill  has,  therefore,  as  far  as  pos- 
sible, been  modeled  on  the  corresponding  provisions  of  the  Patents 
Designs  and  Trade  Marks  Act,  1883. 

The  chief  points  on  which  the  recommendations  of  the  Royal 
Commission  are  departed  from  in  the  present  Bill  are  as  follows  : — 

1.  The   Commissioners  recommended    that   the  universities   and 

libraries  (other  than  the  British  Museum)  which  are  now 
entitled  to  receive  a  copy  of  every  book  published  in  the 
United  Kingdom,  should  be  left  to  purchase  the  books  they 
required  in  the  market,  and  that  their  present  privilege  should 
be  taken  away.  But  from  communications  which  have  been 
received  from  the  librarians,  it  appears  that  they  are  most 
anxious  to  retain  their  present  privilege  ;  that  the  libraries 
could  not  be  properly  supplied  if  it  was  abolished,  and  that 
the  cases  in  which  it  can  cause  any  real  hardship  are  very  few. 
The  Bill,  therefore,  provides  for  the  continuance  of  the 
supply  to  these  institutions. 

2.  With  regard  to  the  Fine  Arts,  the  Commissioners  were  of  opin- 

ion that  the  copyright  in  paintings,  etc. ,  should  pass  to  the  pur- 
chaser unless  specially  reserved  to  the  artist.  Under  the  Bill, 
however,  the  copyright  will  remain  in  the  artist,  unless  ex- 
pressly assigned  to  the  purchaser.  This,  it  is  believed,  is  in 
accordance  with  the  general  wish  of  artists,  and  as  no  replica 
can  be  produced  without  the  consent  of  the  owner  of  the 
original  painting,  no  injury  will  be  inflicted  on  purchasers, 
who  will  moreover  have  the  right  (under  section  46)  of  pre- 


286  THE   QUESTION   OF   COPYRIGHT. 

venting  unauthorized  reproductions,  even  though  they  have 
not  (as  of  course  it  will  be  open  to  them  to  do)  taken  an 
express  assignment  of  the  copyright.  Practically  the  only 
effect  of  the  artist  retaining  the  copyright  after  parting  with 
the  picture,  will  be  to  give  him  a  control  over  its  reproduction 
by  engraving  or  otherwise,  and  this  control  it  seems  proper 
that  he  should  have. 

3.  The  exception  made  in  the  Act,  5  and  6  Will.  IV.  c.  65,  with 

respect  to  lectures  delivered  in  universities  and  elsewhere,  is 
not  proposed  to  be  re-enacted  in  the  present  Bill.  What  the 
exact  meaning  and  effect  of  that  exception  may  be  seems  to 
be  far  from  clear  (see  the  observations  of  the  Lords  in  Caird 
vs.  Sime,  L.J?.  12  App.  Ca.  326),  and  moreover,  it  does  not 
by  any  means  seem  to  follow  that  because  a  lecture  is  deliv- 
ered in  a  university,  or  in  virtue  of  an  endowment  or  founda- 
tion, the  lecturer  should  be  deprived  of  rights  conferred  on 
all  other  lecturers  whether  they  are  paid  for  their  services  or 
not. 

4.  The  omission  of  any  provisions  for  the  introduction  of  a  licens- 

ing system  into  the  Colonies  ;  and 

5.  The  right  given  to  a  copyright  owner  of  taking  proceedings  in 

respect  of  infringements,  committed  before  he  registers  his 
title  on  payment  of  a  penalty,  have  been  already  noticed  and 
explained. 

London,  January,  1891. 


XVI. 

CONVENTION  CONCERNING  THE  CREA- 
TION OF  AN  INTERNATIONAL  UNION 
FOR  THE  PROTECTION  OF  LITERARY 
AND  ARTISTIC  WORKS. 

Ratified  at  Berne,  Switzerland,  Sept.  5th,  1887. 

Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  Empress  of  India  ;  His  Majesty  the  German  Emperor, 
King  of  Prussia ;  His  Majesty  the  King  of  the  Belgians  ;  Her 
Majesty  the  Queen  Regent  of  Spain,  in  the  name  of  His  Catholic 
Majesty  the  King  of  Spain  ;  the  President  of  the  French  Republic  ; 
the  President  of  the  Republic  of  Hayti  ;  His  Majesty  the  King 
of  Italy  ;  the  President  of  the  Republic  of  Liberia  ;  the  Federal 
Council  of  the  Swiss  Confederation  ;  His  Highness  the  Bey  of 
Tunis, 

Being  equally  animated  by  the  desire  to  protect  effectively,  and  in 
as  uniform  a  manner  as  possible,  the  rights  of  authors  over  their 
literary  and  artistic  works, 

Have  resolved  to  conclude  a  convention  to  that  effect,  and  have 
named  for  their  Plenipotentiaries,  that  is  to  say : 

Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  Empress  of  India,  Sir  Francis  Ottiwell  Adams,  Knight 
Commander  of  the  Most  Distinguished  Order  of  St.  Michael  and  St. 
George,  Companion  of  the  Most  Honorable  Order  of  the  Bath,  her 
Envoy  Extraordinary  and  Minister  Plenipotentiary  at  Berne  ;  and 
John  Henry  Gibbs  Bergne,  Esquire,  Companion  of  the  Most  Dis- 
tinguished Order  of  St.  Michael  and  St.  George,  Director  of  a  De- 
partment in  the  Foreign  Office  at  London. 

His  Majesty  the  German  Emperor,  King  of  Prussia,  M.  Otto  von 
Blilow,  Privy  Councilor  of  Legation,  and  Chamberlain  of  His 
Majesty,  his  Envoy  Extraordinary  and  Minister  Plenipotentiary  to 
the  Swiss  Confederation. 


288  THE   QUESTION   OF   COPYRIGHT. 

His  Majesty  the  King  of  the  Belgians,  M.  Maurice  Delfosse,  his 
Envoy  Extraordinary  and  Minister  Plenipotentiary  to  the  Swiss  Con- 
federation. 

Her  Majesty  the  Queen  Regent  of  Spain,  in  the  name  of  His 
Catholic  Majesty  the  King  of  Spain  ;  the  Count  de  la  Almina  y 
Castro,  Senator,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
to  the  Swiss  Confederation  ;  M.  Don  Jose  Villa-Amil,  Chief  of  the 
Section  of  Intellectual  Property  in  the  Ministry  of  Public  Instruc- 
tion, Doctor  of  Civil  and  Canon  Law,  Member  of  the  Facultative 
Corps  of  Archivists,  Librarians,  and  Archaeologists,  and  of  the 
Academies  of  History,  of  the  Fine  Arts  of  St.  Ferdinand,  and  of 
the  Academy  of  Sciences  at  Lisbon. 

The  President  of  the  French  Republic,  M.  Francois  Victor-Em- 
manuel Arago,  Senator,  Ambassador  from  the  French  Republic  to  the 
Swiss  Confederation. 

The  President  of  the  Republic  of  Hayti,  M.  Louis  Joseph  Janvier, 
Doctor  of  Medicine  of  the  Faculty  of  Paris,  Prize-man  of  the  Faculty 
of  Medicine  of  Paris,  bearing  Diplomas  from  the  School  of  Political 
Sciences  of  Paris  (Administrative  and  Diplomatic  Sections),  deco- 
rated with  the  Haytian  Medal  of  the  third  class. 

His  Majesty  the  King  of  Italy,  M.  Charles  Emmanuel  Beccaria 
des  Marquis  dTncisa,  Chevalier  of  the  Orders  of  Saints  Maurice  and 
Lazarus,  and  of  the  Crown  of  Italy,  his  Charge  d'Affaires  to  the 
Swiss  Confederation. 

The  President  of  the  Republic  of  Liberia,  M.  William  Kcentzer, 
Imperial  Councilor,  Consul-General,  Member  of  the  Chamber  of 
Commerce  of  Vienna. 

The  Federal  Council  of  the  Swiss  Confederation,  M.  Numa  Droz, 
Vice-President  of  the  Federal  Council,  Head  of  the  Department  of 
Commerce  and  Agriculture  ;  M.  Louis  Ruchonnet,  Federal  Coun- 
cilor, Chief  of  the  Department  of  Justice  and  Police  ;  M.  A.  d'Orelli, 
Professor  of  Law  at  the  University  of  Zurich. 

His  Highness  the  Bey  of  Tunis,  M.  Louis  Renault,  Professor  to 
the  Faculty  of  Law  of  Paris,  and  to  the  Free  School  of  Political 
Sciences,  Chevalier  of  the  Order  of  the  Legion  of  Honor,  and  Chev- 
alier of  the  Order  of  the  Crown  of  Italy. 

Who,  having  communicated  to  each  other  their  respective  full 
powers,  found  in  good  and  due  form,  have  agreed  upon  the  follow- 
ing Articles  :— 


THE   BERNE   CONVENTION.  289 

Article  I. 

The  Contracting  States  are  constituted  into  an  Union  for  the  pro- 
tection of  the  rights  of  authors  over  their  literary  and  artistic  works. 

Article  II. 

Authors  of  any  of  the  countries  of  the  Union,  or  their  lawful  rep- 
resentatives, shall  enjoy  in  the  other  countries  for  their  works, 
whether  published  in  one  of  those  countries  or  unpublished,  the 
rights  which  the  respective  laws  do  now  or  may  hereafter  grant  to 
natives. 

The  enjoyment  of  these  rights  is  subject  to  the  accomplishment  of 
the  conditions  and  formalities  prescribed  by  law  in  the  country  of 
origin  of  the  work,  and  cannot  exceed  in  the  other  countries  the  term 
of  protection  granted  in  the  said  country  of  origin. 

The  country  of  origin  of  the  work  is  that  in  which  the  work  is  first 
published,  or  if  such  publication  takes  place  simultaneously  in  several 
countries  of  the  Union,  that  one  of  them  in  which  the  shortest  term 
of  protection  is  granted  by  law. 

For  unpublished  works  the  country  to  which  the  author  belongs  is 
considered  the  country  of  origin  of  the  work. 

Article  III. 
The  stipulations  of  the  present  Convention   apply   equally  to  the 
publishers  of  literary   and  artistic  works  published    in  one  of    the 
countries  of  the  Union,  but  of  which  the  authors  belong  to  a  country 
which  is  not  a  party  to  the  Union. 

Article  IV. 
The  expression  "literary  and  artistic  works"  comprehends  books, 
pamphlets,  and  all  other  writings  ;  dramatic,  or  dramatico-musical 
works,  musical  compositions  with  or  without  words  ;  works  of  de- 
sign, painting,  sculpture,  and  engraving  ;  lithographs,  illustrations, 
geographical  charts  ;  plans,  sketches,  and  plastic  works  relative  to 
geography,  topography,  architecture,  or  science  in  general  ;  in  fact, 
every  production  whatsoever  in  the  literary,  scientific,  or  artistic  do- 
main which  can  be  published  by  any  mode  of  impression  or  reproduc- 
tion. 

Article  V. 

Authors  of  any  of  the  countries  of  the  Union,  or  their  lawful  rep- 
resentatives, shall  enjoy  in  the  other  countries  the  exclusive  right  of 
19 


290  THE   QUESTION   OF   COPYRIGHT. 

making  or  authorizing  the  translation  of  their  works  until  the  expira- 
tion of  ten  years  from  the  publication  of  the  original  work  in  one  of 
the  countries  of  the  Union. 

For  works  published  in  incomplete  parts  ("  livraisons  ")  the  period 
of  ten  years  commences  from  the  date  of  publication  of  the  last  part 
of  the  original  work. 

For  works  composed  of  several  volumes  published  at  intervals,  as 
well  as  for  bulletins  or  collections  ("  cahiers")  published  by  literary 
or  scientific  Societies,  or  by  private  persons,  each  volume,  bulletin, 
or  collection  is,  with  regard  to  the  period  of  ten  years,  considered  as 
a  separate  work. 

In  the  cases  provided  for  by  the  present  Article,  and  for  the  calcu- 
lation of  the  period  of  protection,  the  31st  December  of  the  year  in 
which  the  work  was  published  is  admitted  as  the  date  of  publication. 

Article  VI. 

Authorized  translations  are  protected  as  original  works.  They 
consequently  enjoy  the  protection  stipulated  in  Articles  II.  and  III. 
as  regards  their  unauthorized  reproduction  in  the  countries  of  the 
Union. 

It  is  understood  that,  in  the  case  of  a  work  for  which  the  tranikt- 
ing  right  has  fallen  into  the  public  domain,  the  translator  cannot 
oppose  the  translation  of  the  same  work  by  other  writers. 

Article  VII. 

Articles  from  newspapers  or  periodicals  published  in  any  of  the 
countries  of  the  Union  may  be  reproduced  in  original  or  in  trans- 
lation in  the  other  countries  of  the  Union,  unless  the  authors  or 
publishers  have  expressly  forbidden  it.  For  periodicals  it  is  suffi- 
cient if  the  prohibition  is  made  in  a  general  manner  at  the  beginning 
of  each  number  of  the  periodical. 

This  prohibition  cannot  in  any  case  apply  to  articles  of  political 
discussion,  or  to  the  reproduction  of  news  of  the  day  or  current  topics. 

Article  VIII. 

As  regards  the  liberty  of  extracting  portions  from  literary  or  artistic 
works  for  use  in  publications  destined  for  educational  or  scientific 
purposes,  or  for  chrestomathies,  the  matter  is  to  be  decided  by  the 
legislation  of  the  different  countries  of  the  Union,  or  by  special 
arrangements  existing  or  to  be  concluded  between  them. 


THE   BERNE   CONVENTION.  291 

Article  IX. 

The  stipulations  of  Article  II.  apply  to  the  public  representation  of 
dramatic  or  dramatico-musical  works,  whether  such  works  be  pub- 
lished or  not. 

Authors  of  dramatic  or  dramatico-musical  works,  or  their  lawful 
representatives,  are,  during  the  existence  of  their  exclusive  right  of 
translation,  equally  protected  against  the  unauthorized  public  repre- 
sentation of  translations  of  their  works. 

The  stipulations  of  Article  II.  apply  equally  to  the  public  perform- 
ance of  unpublished  musical  works,  or  of  published  works  in  which 
the  author  has  expressly  declared  on  the  title-page  or  commencement 
of  the  work  that  he  forbids  the  public  performance. 

Article  X. 

Unauthorized  indirect  appropriations  of  a  literary  or  artistic  work, 
of  various  kinds,  such  as  adaptations,  arrangements  of  music,  etc., 
are  specially  included  amongst  the  illicit  reproductions  to  which  the 
present  Convention  applies,  when  they  are  only  the  reproduction  of 
a  particular  work,  in  the  same  form,  or  in  another  form,  with  non- 
essential alterations,  additions,  or  abridgments,  so  made  as  not  to 
confer  the  character  of  a  new  original  work. 

It  is  agreed  that,  in  the  application  of  the  present  Article,  the 
Tribunals  of  the  various  countries  of  the  Union  will,  if  there  is  occa- 
sion, conform  themselves  to  the  provisions  of  their  respective  laws. 

Article  XL 

In  order  that  the  authors  of  works  protected  by  the  present  Con- 
vention shall,  in  the  absence  of  proof  to  the  contrary,  be  considered 
as  such,  and  be  consequently  admitted  to  institute  proceedings 
against  pirates  before  the  Courts  of  the  various  countries  of  the 
Union,  it  will  be  sufficient  that  their  name  be  indicated  on  the  work 
in  the  accustomed  manner. 

For  anonymous  or  pseudonymous  works,  the  publisher  whose 
name  is  indicated  on  the  work  is  entitled  to  protect  the  rights 
belonging  to  the  author.  He  is,  without  other  proof,  reputed  the 
lawful  representative  of  the  anonymous  or  pseudonymous  author. 

It  is,  nevertheless,  agreed  that  the  Tribunals  may,  if  necessary, 
require  the  production  of  a  certificate  from  the  competent  authority 
to  the  effect  that  the  formalities  prescribed  by  law  in  the  country  of 
origin  have  been  accomplished,  as  contemplated  in  Article  II, 


2Q2  THE   QUESTION   OF   COPYRIGHT. 

Article  XII. 

Pirated  works  may  be  seized  on  importation  into  those  countries 
of  the  Union  where  the  original  work  enjoys  legal  protection. 

The  seizure  shall  take  place  conformably  to  the  domestic  law  of 
each  State. 

Article  XIII. 

It  is  understood  that  the  provisions  of  the  present  Convention 
cannot  in  any  way  derogate  from  the  right  belonging  to  the  Govern- 
ment of  each  country  of  the  Union  to  permit,  to  control,  or  to  pro- 
hibit, by  measures  of  domestic  legislation  or  police,  the  circulation, 
representation,  or  exhibition  of  any  works  or  productions  in  regard 
to  which  the  competent  authority  may  find  it  necessary  to  exercise 
that  right. 

Article  XIV. 

Under  the  reserves  and  conditions  to  be  determined  by  common 
agreement,1  the  present  Convention  applies  to  all  works  which  at 
the  moment  of  its  coming  into  force  have  not  yet  fallen  into  the 
public  domain  in  the  country  of  origin. 

Article  XV. 

It  is  understood  that  the  Governments  of  the  countries  of  the 
Union  reserve  to  themselves  respectively  the  right  to  enter  into 
separate  and  particular  arrangements  between  each  other,  provided 
always  that  such  arrangements  confer  upon  authors  or  their  lawful 
representatives  more  extended  rights  than  those  granted  by  the 
Union,  or  embody  other  stipulations  not  contrary  to  the  present 
Convention. 

Article  XVI. 

An  international  office  is  established,  under  the  name  of  "Office 
of  the  International  Union  for  the  Protection  of  Literary  and 
Artistic  Works." 

This  office,  of  which  the  expenses  will  be  borne  by  the  Adminis- 
trations of  all  the  countries  of  the  Union,  is  placed  under  the  high 
authority  of  the   Superior  Administration  of  the  Swiss  Confedera- 

1  See  paragraph  4  of  Final  Protocol. 


THE   BERNE   CONVENTION.  293 

tion,  and  works  under  its  direction.  The  functions  of  this  Office 
are  determined  by  common  accord  between  the  countries  of  the 
Union. 

Article  XVII. 

The  present  Convention  may  be  submitted  to  revisions  in  order  to 
introduce  therein  amendments  calculated  to  perfect  the  system  of 
the  Union. 

Questions  of  this  kind,  as  well  as  those  which  are  of  interest  to 
the  Union  in  other  respects,  will  be  considered  in  Conferences  to  be 
held  successively  in  the  countries  of  the  Union  by  Delegates  of  the 
said  countries. 

It  is  understood  that  no  alteration  in  the  present  Convention  shall 
be  binding  on  the  Union  except  by  the  unanimous  consent  of  the 
countries  composing  it. 

Article  XVIII. 

Countries  which  have  not  become  parties  to  the  present  Conven- 
tion, and  which  grant  by  their  domestic  law  the  protection  of  rights 
secured  by  this  Convention,  shall  be  admitted  to  accede  thereto  on 
request  to  that  effect. 

Such  accession  shall  be  notified  in  writing  to  the  Government  of 
the  Swiss  Confederation,  which  will  communicate  it  to  all  the  other 
countries  of  the  Union. 

Such  accession  shall  imply  full  adhesion  to  all  the  clauses  and 
admission  to  all  the  advantages  provided  by  the  present  Convention. 

Article  XIX. 

Countries  acceding  to  the  present  Convention  shall  also  have  the 
right  to  accede  thereto  at  any  time  for  their  Colonies  or  foreign 
possessions. 

They  may  do  this  either  by  a  general  declaration  comprehending 
all  their  Colonies  or  possessions  within  the  accession,  or  by  specially 
naming  those  comprised  therein,  or  by  simply  indicating  those  which 
are  excluded. 

Article  XX. 

The  present  Convention  shall  be  put  in  force  three  months  after 
the  exchange  of  the  ratifications,  and  shall  remain  in  effect  for  an 


294  THE    QUESTION   OF  COPYRIGHT. 

indefinite   period  until   the   termination  of  a  year  from  the  day  on 
which  it  may  have  been  denounced. 

Such  denunciation  shall  be  made  to  the  Government  authorized  to 
receive  accessions,  and  shall  only  be  effective  as  regards  the  country 
making  it,  the  Convention  remaining  in  full  force  and  effect  for  the 
other  countries  of  the  Union. 

Article  XXI. 

The  present  Convention  shall  be  ratified,  and  the  ratifications  ex- 
changed at  Berne,  within  the  space  of  one  year  at  the  latest. 

In  witness  whereof,  the  respective  Plenipotentiaries  have  signed 
the  same,  and  have  affixed  thereto  the  seal  of  their  arms. 

Done  at  Berne,  the  9th  day  of  September,  1886. 

F.  O.   ADAMS. 

J.   H.   G.  BERGNE. 

OTTO  von  BULOW. 

MAURICE  DELFOSSE. 

COMTE   DE  LA  ALMINA  Y  CASTRO. 

JOSE  VILLA-AMIL. 

EMMANUEL  ARAGO. 

LOUIS-JOSEPH  JANVIER. 

E.  DI  BECCARIA. 

KOENTZER. 

DROZ. 

L.   RUCHONNET. 

A.  D'ORELLI. 

L.   RENAULT. 


Additional  Article. 

The  Plenipotentiaries  assembled  to  sign  the  Convention  concern- 
ing the  creation  of  an  International  Union  for  the  protection  of 
literary  and  artistic  works  have  agreed  upon  the  following  Addi- 
tional Article,  which  shall  be  ratified  together  with  the  Convention 
to  which  it  relates  : — 

The  Convention  concluded  this  day  in  nowise  affects  the  main- 
tenance of  existing  Conventions  between  the  Contracting  States, 
provided  always  that  such  Conventions  confer  on  authors,  or  their 
lawful  representatives,  rights  more  extended  than  those  secured  by 


THE   BERNE  CONVENTION.  295 

the  Union,  or  contain  other  stipulations  which  are  not  contrary  to 
the  said  Convention. 

In  witness  whereof,  the  respective  Plenipotentiaries  have  signed 
the  present  Additional  Article. 

Done  at  Berne,  the  9th  day  of  September,  1886. 

(Signed)        F.  O.  ADAMS. 

J.   H.  G.  BERGNE. 

OTTO  von  BULOW. 

MAURICE  DELFOSSE. 

ALMINA. 

VILLA-AMIL. 

EMMANUEL  ARAGO. 

LOUIS-JOSEPH  JANVIER. 

E.  DI  BECCARIA. 

KCENTZER. 

DROZ. 

L.  RUCHONNET. 

A.   D'ORELLI. 

L.  RENAULT. 

Final  Protocol. 

In  proceeding  to  the  signature  of  the  Convention  concluded  this 
day,  the  undersigned  Plenipotentiaries  have  declared  and  stipulated 
as  follows  : 

1.  As  regards  Article  IV.,  it  is  agreed  that  those  countries  of 
the  Union  where  the  character  of  artistic  works  is  not  refused  to 
photographs,  engage  to  admit  them  to  the  benefits  of  the  Convention 
concluded  to-day,  from  the  date  of  its  coming  into  effect.  They 
are,  however,  not  bound  to  protect  the  authors  of  such  works 
further  than  is  permitted  by  their  own  legislation,  except  in  the  case 
of  international  engagements  already  existing,  or  which  may  here- 
after be  entered  into  by  them. 

It  is  understood  that  an  authorized  photograph  of  a  protected 
work  of  art  shall  enjoy  legal  protection  in  all  the  countries  of  the 
Union,  as  contemplated  by  the  said  Convention,  for  the  same  period 
as  the  principal  right  of  reproduction  of  the  work  itself  subsists, 
and  within  the  limits  of  private  arrangements  between  those  who 
have  legal  rights. 

2.  As  regards  Article  IX.,  it  is  agreed  that  those  countries  of  the 


296  THE   QUESTION   OF  COPYRIGHT. 

Union  whose  legislation  implicitly  includes  choregraphic  works 
amongst  dramatico-musical  works,  expressly  admit  the  former  works 
to  the  benefits  of  the  Convention  concluded  this  day. 

It  is,  however,  understood  that  questions  which  may  arise  on  the 
application  of  this  clause  shall  rest  within  the  competence  of  the 
respective  Tribunals  to  decide. 

3.  It  is  understood  that  the  manufacture  and  sale  of  instruments 
for  the  mechanical  reproduction  of  musical  airs  which  are  copy- 
right, shall  not  be  considered  as  constituting  an  infringement  of 
musical  copyright. 

4.  The  common  agreement  alluded  to  in  Article  XIV.  of  the  Con- 
vention is  established  as  follows  : 

The  application  of  the  Convention  to  works  which  have  not  fallen 
into  the  public  domain  at  the  time  when  it  comes  into  force,  shall 
operate  according  to  the  stipulations  on  this  head  which  may  be 
contained  in  special  Conventions  either  existing  or  to  be  concluded. 

In  the  absence  of  such  stipulations  between  any  countries  of  the 
Union,  the  respective  countries  shall  regulate,  each  for  itself  by  its 
domestic  legislation,  the  manner  in  which  the  principle  contained  in 
Article  XIV.  is  to  be  applied. 

5.  The  organization  of  the  International  Office  established  in 
virtue  of  Article  XVI.  of  the  Convention  shall  be  fixed  by  a  Regu- 
lation which  will  be  drawn  up  by  the  Government  of  the  Swiss 
Confederation. 

The  official  language  of  the  International  Office  will  be  French. 

The  International  Office  will  collect  all  kinds  of  information 
relative  to  the  protection  of  the  rights  of  authors  over  their  literary 
and  artistic  works.  It  will  arrange  and  publish  such  information. 
It  will  study  questions  of  general  utility  likely  to  be  of  interest  to 
the  Union,  and,  by  the  aid  of  documents  placed  at  its  disposal  by 
the  different  Administrations,  will  edit  a  periodical  publication  in 
the  French  language  treating  questions  which  concern  the  Union. 
The  Governments  of  the  countries  of  the  Union  reserve  to  them- 
selves the  faculty  of  authorizing,  by  common  accord,  the  publication 
by  the  Office  of  an  edition  in  one  or  more  other  languages  if  experi- 
ence should  show  this  to  be  requisite. 

The  International  Office  will  always  hold  itself  at  the  disposal  of 
members  of  the  Union,  with  the  view  to  furnish  them  with  any 
special  information  they  may  require  relative  to  the  protection  of 
literary  and  artistic  works. 


THE   BERNE   CONVENTION. 


297 


The  Administration  of  the  country  where  a  Conference  is  about 
to  be  held,  will  prepare  the  programme  of  the  Conference  with  the 
assistance  of  the  International  Office. 

The  Director  of  the  International  Office  will  attend  the  sittings 
of  the  Conferences,  and  will  take  part  in  the  discussions  without  a 
deliberative  voice.  He  will  make  an  annual  Report  on  his  admin- 
istration, which  shall  be  communicated  to  all  the  members  of  the 
Union. 

The  expenses  of  the  Office  of  the  International  Union  shall  be 
shared  by  the  Contracting  States.  Unless  a  fresh  arrangement  be 
made,  they  cannot  exceed  a  sum  of  60,000  fr.  a  year.  This  sum 
may  be  increased  by  the  decision  of  one  of  the  Conferences  pro- 
vided for  in  Article  XVII. 

The  share  of  the  total  expense  to  be  paid  by  each  country  shall  be 
determined  by  the  division  of  the  contracting  and  acceding  States 
into  six  classes,  each  of  which  shall  contribute  in  the  proportion  of  a 
certain  number  of  units,  viz. : — 


First  Class 

Second 

Third 

Fourth 

Fifth 

Sixth 


25  units. 
20       " 
15        " 
10 

5       " 
3       " 


These  co-efficients  will  be  multiplied  by  the  number  of  States  of 
each  class,  and  the  total  product  thus  obtained  will  give  the  number 
of  units  by  which  the  total  expense  is  to  be  divided.  The  quotient 
will  give  the  amount  of  the  unity  of  expense. 

Each  State  will  declare  at  the  time  of  its  accession,  in  which  of  the 
said  classes  it  desires  to  be  placed. 

The  Swiss  Administration  will  prepare  the  Budget  of  the  Office, 
superintend  its  expenditure,  make  the  necessary  advances,  and  draw 
up  the  annual  account,  which  shall  be  communicated  to  all  the  other 
Administrations. 

6.  The  next  Conference  shall  be  held  at  Paris,  between  four  and 
six  years  from  the  date  of  the  coming  into  force  of  the  Convention. 

The  French  Government  will  fix  the  date  within  these  limits  after 
having  consulted  the  International  Office. 

7.  It  is  agreed  that,  as  regards  the  exchange  of  ratifications  con- 


298  THE   QUESTION   OF  COPYRIGHT. 

templated  in  Article  XXI.,  each  Contracting  Party  shall  give  a  single 
instrument,  which  shall  be  deposited,  with  those  of  the  other  States, 
in  the  Government  archives  of  the  Swiss  Confederation.  Each  party 
shall  receive  in  exchange  a  copy  of  the  proces-verbal  of  the  exchange 
of  ratifications,  signed  by  the  Plenipotentiaries  present. 

The  present  Final  Protocol,  which  shall  be  ratified  with  the  Con- 
vention concluded  this  day,  shall  be  considered  as  forming  an  integral 
part  of  the  said  Convention,  and  shall  have  the  same  force,  effect,  and 
duration. 

In  witness  whereof  the  respective  Plenipotentiaries  have  signed  the 
same. 

Done  at  Berne,  the  9th  day  of  September,  1886. 

(Signed)         F.  O.  ADAMS. 

J.   H.   G.  BERGNE. 

OTTO  von  BULOW. 

MAURICE    DELFOSSE. 

ALMINA. 

VILLA-AMIL. 

EMMANUEL   ARAGO. 

LOUIS-JOSEPH   JANVIER. 

E.  DI    BECCARIA. 

KGENTZER. 

DROZ. 

L.   RUCHONNET. 

A.  D'ORELLI. 

L.   RENAULT. 


Proces-verbal  of  Signature. 

The  undersigned  Plenipotentiaries,  assembled  this  day  to  proceed 
with  the  signature  of  the  Convention  with  reference  to  the  creation 
of  an  International  Union  for  the  protection  of  literary  and  artistic 
works,  have  exchanged  the  following  declarations  : — ■ 

1.  With  reference  to  the  accession  of  the  Colonies  or  foreign  pos- 
sessions provided  for  by  Article  XIX.  of  the  Convention  : 


THE  BERNE   CONVENTION.  299 

The  Plenipotentiaries  of  His  Catholic  Majesty  the  King  of  Spain 
reserve  to  the  Government  the  power  of  making  known  His  Ma- 
jesty's decision  at  the  time  of  the  exchange  of  ratifications. 

The  Plenipotentiary  of  the  French  Republic  states  that  the 
accession  of  his  country  carries  with  it  that  of  all  the  French  Colo- 
nies. 

The  Plenipotentiaries  of  Her  Britannic  Majesty  state  that  the  ac- 
cession of  Great  Britain  to  the  Convention  for  the  protection  of 
literary  and  artistic  works  comprises  the  United  Kingdom  of  Great 
Britain  and  Ireland,  and  all  the  Colonies  and  foreign  possessions  of 
Her  Britannic  Majesty. 

At  the  same  time  they  reserve  to  the  Government  of  Her  Britannic 
Majesty  the  power  of  announcing  at  any  time  the  separate  denuncia- 
tion of  the  Convention  by  one  or  several  of  the  following  Colonies  or 
possessions,  in  the  manner  provided  for  by  Article  XX.  of  the  Con- 
vention, namely  : — 

India,  the  Dominion  of  Canada,  Newfoundland,  the  Cape,  Natal, 
New  South  Wales,  Victoria,  Queensland,  Tasmania,  South  Aus- 
tralia, Western  Australia,  and  New  Zealand. 

2.  With  respect  to  the  classification  of  the  countries  of  the  Union 
having  regard  to  their  contributory  part  to  the  expenses  of  the 
International  Bureau  (No.  5  of  the  Final  Protocol)  : 

The  Plenipotentiaries  declare  that  their  respective  countries 
should  be  ranked  in  the  following  classes,  namely  : — 

Germany  in  the  first  class.  Hayti  in  the  fifth  class. 

Belgium  in  the  third  class.  Italy  in  the  first  class. 

Spain  in  the  second  class.  Switzerland  in  the  third  class. 

France  in  the  first  class.  Tunis  in  the  sixth  class. 

Great  Britain  in  the  first  class. 


The  Plenipotentiary  of  the  Republic  of  Liberia  states  that  the 
powers  which  he  has  received  from  his  Government  authorize  him 
to  sign  the  Convention,  but  that  he  has  not  received  instructions  as 
to  the  class  in  which  his  country  proposes  to  place  itself  with  respect 
to  the  contribution  to  the  expenses  of  the  International  Bureau. 
He  therefore  reserves  that  question  to  be  determined  by  his  Gov- 
ernment, which  will  make  known  its  intention  on  the  exchange  of 
ratifications. 


300  THE   QUESTION   OF   COPYRIGHT. 

In  witness  whereof,  the  respective   Plenipotentiaries  have  signed 
the  present  proch-verbal. 

Done  at  Berne,  the  9th  day  of  September,  1886. 

(Signed)  For  Great  Britain   .  .    F.   O.   ADAMS. 

J.   H.   G.  BERGNE. 
For  Germany  . .     . .   OTTO  von  BULOW. 
For  Belgium    .  .     . .   MAURICE  DELFOSSE. 
For  Spain ALMINA. 

VILLA-AMIL. 
For  France       . .     . .   EMMANUEL  ARAGO. 

For  Hayti LOUIS-JOSEPH  JANVIER. 

For  Italy E.  DI  BECCARIA. 

For  Liberia      . .     . .   KCENTZER. 
For  Switzerland      . .   DROZ. 

L.  RUCHONNET. 

A.   D'ORELLI. 
For  Tunis L.   RENAULT. 


Proch-verbal  recording  Deposit  of  Ratifications. 

In  accordance  with  the  stipulations  of  Article  XXL,  paragraph  I, 
of  the  Convention  for  the  creation  of  an  International  Union  for 
the  protection  of  literary  and  artistic  works,  concluded  at  Berne  on 
9th  September,  1886,  and  in  consequence  of  the  invitation  addressed 
to  that  effect  by  the  Swiss  Federal  Council  to  the  Governments  of 
the  High  Contracting  Parties,  the  Undersigned  assembled  this  day 
in  the  Federal  Palace  at  Berne  for  the  purpose  of  examining  and 
depositing  the  ratifications  of  : — 

Her  Majesty  the  Queen  of  Great  Britain  and  Ireland,  Empress  of 
India, 

His  Majesty  the  Emperor  of  Germany,  King  of  Prussia, 

His  Majesty  the  King  of  the  Belgians, 

Her  Majesty  the  Queen  Regent  of  Spain,  in  the  name  of  His 
Catholic  Majesty  the  King  of  Spain, 

The  President  of  the  French  Republic, 

The  President  of  the  Republic  of  Hayti, 

His  Majesty  the  King  of  Italy, 


THE   BERNE   CONVENTION.  301 

The  Council  of  the  Swiss  Confederation, 
His  Highness  the  Bey  of  Tunis, 

to  the  said  International  Convention,  followed  by  an  Additional 
Article  and  Final  Protocol. 

The  instruments  of  these  acts  of  ratification  having  been  pro- 
duced and  found  in  good  and  due  form,  they  have  been  delivered 
into  the  hands  of  the  President  of  the  Swiss  Confederation,  to  be 
deposited  in  the  archives  of  the  Government  of  that  country,  in 
accordance  with  clause  No.  7  of  the  Final  Protocol  of  the  Inter- 
national Convention. 

In  witness  whereof  the  Undersigned  have  drawn  up  the  present 
proces-verbal,  to  which  they  have  affixed  their  signatures  and  the 
seals  of  their  arms. 

Done  at  Berne,  the  5th  September,  1S87,  in  nine  copies,  one  of 
which  shall  be  deposited  in  the  archives  of  the  Swiss  Confederation 
with  the  instruments  of  ratification. 

For  Great  Britain         . .         F.  O.   ADAMS. 


For  Germany 
For  Belgium 
For  Spain  .  . 
For  France 
For  Hayti .  . 
For  Italy    . . 


ALFRED  von  BULOW. 
HENRY  LOUMYER. 
COMTE  DE  LA  ALMINA. 
EMMANUEL  ARAGO. 
LOUIS-JOSEPH  JANVIER. 
FE. 


For  Switzerland  . .         DROZ. 

For  Tunis H.   MARCHAND. 


Protocol. 

On  proceeding  to  the  signature  of  the  proces-verbal  recording  the 
deposit  of  the  acts  of  ratification  given  by  the  High  Parties  Signatory 
to  the  Convention  of  the  gth  September,  18S6,  for  the  creation  of  an 
International  Union  for  the  protection  of  literary  and  artistic  works, 
the  Minister  of  Spain  renewed,  in  the  name  of  his  Government,  the 
declaration  recorded  in  the  proces-verbal  of  the  Conference  of  the 
9th  September,  1886,  according  to  which  the  accession  of  Spain  to 
the  Convention  includes  that  of  all  the  territories  dependent  upon 
the  Spanish  Crown. 


302  THE   QUESTION   OF   COPYRIGHT. 

The  Undersigned  have  taken  note  of  this  declaration. 
In  witness  whereof  they  have  signed  the  present  Protocol,  done  at 
Berne,  in  nine  copies,  the  5th  September,  1887. 

For  Great  Britain       . .   F.  O.  ADAMS. 

For  Germany      . .      . .   ALFRED  VON  BULOW. 

For  Belgium       ..      ..   HENRY   LOUMYER. 

For  Spain COMTE  DE  LA  ALMINA. 

For  France  ..      ..   EMMANUEL  ARAGO. 

ForHayti LOUIS-JOSEPH  JANVIER. 

For  Italy      FE. 

For  Switzerland  . .   DROZ. 

For  Tunis H.  MARCHAND. 

THE   INTERNATIONAL   COPYRIGHT   ACT,    1 886. 
[49  &  50  Vict.,  c.  33-] 

Arrangement  of  Sections. 

Section. 

1.  Short  titles  and  construction . 

2.  Amendment  as  to  extent  and  effect  of  order  under  International  Copy- 

right Acts. 

3.  Simultaneous  publication. 

4.  Modification  of  certain  provisions  of  International  Copyright  Acts. 

5.  Restriction  on  translation. 

6.  Application  of  Act  to  existing  works. 

7.  Evidence  of  foreign  copyright. 

8.  Application  of  Copyright  Acts  to  Colonies. 

9.  Application  of  International  Copyright  Acts  to  Colonies. 

10.  Making  of  Orders  ia  Council. 

11.  Definitions. 

12.  Repeal  of  Acts. 
Schedules. 

An  act  to  amend  the  Law  respecting  International  and  Colonial 
Copyright.  [25th  June,  1886.] 

Whereas,  by  the  International  Copyright  Acts  Her  Majesty  is 
authorized  by  Order  in  Council  to  direct  that  as  regards  literary  and 
artistic  works  first  published  in  a  foreign  country  the  author  shall 
have  copyright  therein  during  the  period  specified  in  the  order,  not 
exceeding  the  period  during  which  authors  of  the  like  works  first 
published  in  the  United  Kingdom  have  copyright  : 


THE   BRITISH    ACT   OF    1 886.  303 

And  whereas,  at  an  international  conference  held  at  Berne  in  the 
month  of  September  one  thousand  eight  hundred  and  eighty-five  a 
draft  of  a  convention  was  agreed  to  for  giving  to  authors  of  literary 
and  artistic  works  first  published  in  one  of  the  countries  parties  to 
the  convention  copyright  in  such  works  throughout  the  other  coun- 
tries parties  to  the  convention  ; 

And  whereas,  without  the  authority  of  Parliament  such  convention 
cannot  be  carried  into  effect  in  Her  Majesty's  dominions  and  conse- 
quently Her  Majesty  cannot  become  a  party  thereto,  and  it  is  expe- 
dient to  enable  Her  Majesty  to  accede  to  the  convention  : 

Be  it  therefore  enacted  by  the  Queen's  most  Excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  Lords  Spiritual  and  Tem- 
poral, and  Commons,  in  this  present  Parliament  assembled,  and  by 
the  authority  of  the  same,  as  follows  : 

1. — (1.)  This  Act  may  be  cited  as  the  International  Copyright 
Act,  1886. 

(2.)  The  Acts  specified  in  the  first  part  of  the  First  Schedule  to 
this  Act  are  in  this  Act  referred  to  and  may  be  cited  by  the  short 
titles  in  that  schedule  mentioned,  and  those  Acts,  together  with  the 
enactment  specified  in  the  second  part  of  the  said  schedule,  are  in 
this  Act  collectively  referred  to  as  the  International  Copyright  Acts. 

The  Acts  specified  in  the  Second  Schedule  to  this  Act  may  be 
cited  by  the  short  titles  in  that  schedule  mentioned,  and  those  Acts 
are  in  this  Act  referred  to,  and  may  be  cited  collectively  as  the 
Copyright  Acts. 

(3.)  This  Act  and  the  International  Copyright  Acts  shall  be  con- 
strued together,  and  may  be  cited  together  as  the  International 
Copyright  Acts,  1844  to  1886. 

2.  The  following  provisions  shall  apply  to  an  Order  in  Council 
under  the  International  Copyright  Acts  : — 

(1.)  The  order  may  extend  to  all  the  several  foreign  countries 
named  or  described  therein  : 

(2.)  The  order  may  exclude  or  limit  the  rights  conferred  by  the 
International  Copyright  Acts  in  the  case  of  authors  who  are  not 
subjects  or  citizens  of  the  foreign  countries  named  or  described  in 
that  or  any  other  order,  and  if  the  order  contains  such  limitation 
and  the  author  of  a  literary  or  artistic  work  first  produced  in  one  of 
those  foreign  countries  is  not  a  British  subject,  nor  a  subject  or  citi- 
zen of  any  of  the  foreign  countries  so  named  or  described,  the  pub- 
lisher of  such  work,  unless  the  order  otherwise  provides,  shall,  for 


304  THE   QUESTION   OF   COPYRIGHT. 

the  purpose  of  an,y  legal  proceedings  in  the  United  Kingdom  for 
protecting  any  copyright  in  such  work,  be  deemed  to  be  entitled  to 
such  copyright  as  if  he  were  the  author,  but  this  enactment  shall  not 
prejudice  the  rights  of  such  author  and  publisher  as  between  them- 
selves : 

(3.)  The  International  Copyright  Acts  and  an  order  made  there- 
under shall  not  confer  on  any  person  any  greater  right  or  longer 
term  of  copyright  in  any  work  than  that  enjoyed  in  the  foreign 
country  in  which  such  work  was  first  produced. 

3. — (1.)  An  Order  in  Council  under  the  International  Copyright 
Acts  may  provide  for  determining  the  country  in  which  a  literary  or 
artistic  work,  first  produced  simultaneously  in  two  or  more  countries, 
is  to  be  deemed,  for  the  purpose  of  copyright,  to  have  been  first 
produced,  and  for  the  purposes  of  this  section  "country"  means 
the  United  Kingdom  and  a  country  to  which  an  order  under  the  said 
Acts  applies. 

(2.)  Where  a  work  produced  simultaneously  in  the  United  King- 
dom, and  in  some  foreign  country  or  countries,  is  by  virtue  of  an 
Order  in  Council  under  the  International  Copyright  Acts  deemed  for 
the  purpose  of  copyright  to  be  first  produced  in  one  of  the  said 
foreign  countries,  and  not  in  the  United  Kingdom,  the  copyright  in 
the  United  Kingdom  shall  be  such  only  as  exists  by  virtue  of  pro- 
duction in  the  said  foreign  country,  and  shall  not  be  such  as  would 
have  been  acquired  if  the  work  had  been  first  produced  in  the 
United  Kingdom. 

4. — (1.)  Where  an  order  respecting  any  foreign  country  is  made 
under  the  International  Copyright  Acts  the  provisions  of  those  Acts 
with  respect  to  the  registry  and  delivery  of  copies  of  works  shall  not 
apply  to  works  produced  in  such  country  except  so  far  as  provided 
by  the  order. 

(2.)  Before  making  an  Order  in  Council  under  the  International 
Copyright  Acts  in  respect  of  any  foreign  country,  Her  Majesty  in 
Council  shall  be  satisfied  that  that  foreign  country  has  made  such 
provisions  (if  any)  as  it  appears  to  Her  Majesty  expedient  to  require 
for  the  protection  of  authors  of  works  first  produced  in  the  United 
Kingdom. 

5. — (1.)  Where  a  work  being  a  book  or  dramatic  piece  is  first  pro- 
duced in  a  foreign  country  to  which  an  Order  in  Council  under  the 
International  Copyright  Acts  applies,  the  author  or  publisher,  as 
the  case  may  be,  shall,  unless  otherwise  directed  by  the  Order,  have 


THE   BRITISH   ACT   OF    1 886.  305 

the  same  right  of  preventing  the  production  in  and  importation  into 
the  United  Kingdom  of  any  translation  not  authorized  by  him  of  the 
said  work  as  he  has  of  preventing  the  production  and  importation  of 
the  original  work. 

(2.)  Provided  that  if  after  the  expiration  of  ten  years,  or  any  other 
term  prescribed  by  the  order,  next  after  the  end  of  the  year  in  which 
the  work,  or  in  the  case  of  a  book  published  in  numbers  each  num- 
ber of  the  book,  was  first  produced,  an  authorized  translation  in  the 
English  language  of  such  work  or  number  has  not  been  produced, 
the  said  right  to  prevent  the  production  in  and  importation  into  the 
United  Kingdom  of  an  unauthorized  translation  of  such  work  shall 
cease. 

(3.)  The  law  relating  to  copyright,  including  this  Act,  shall  apply 
to  a  lawfully  produced  translation  of  a  work  in  like  manner  as  if  it 
were  an  original  work. 

(4.)  Such  of  the  provisions  of  the  International  Copyright  Act, 
1852,  relating  to  translations,  as  are  unrepealed  by  this  Act  shall 
apply  in  like  manner  as  if  they  were  re-enacted  in  this  section. 

6.  Where  an  Order  in  Council  is  made  under  the  International 
Copyright  Acts  with  respect  to  any  foreign  country,  the  author  and 
publisher  of  any  literary  or  artistic  work  first  produced  before  the 
date  at  which  such  order  comes  into  operation  shall  be  entitled  to 
the  same  rights  and  remedies  as  if  the  said  Acts  and  this  Act  and 
the  said  order  had  applied  to  the  said  foreign  country  at  the  date  of 
the  said  production  :  Provided  that  where  any  person  has  before  the 
date  of  the  publication  of  an  Order  in  Council  lawfully  produced 
any  work  in  the  United  Kingdom,  nothing  in  this  section  shall 
diminish  or  prejudice  any  rights  or  interests  arising  from  or  in  con- 
nection with  such  production  which  are  subsisting  and  valuable  at 
the  said  date. 

7.  Where  it  is  necessary  to  prove  the  existence  or  proprietorship 
of  the  copyright  of  any  work  first  produced  in  a  foreign  country  to 
which  an  Order  in  Council  under  the  International  Copyright  Acts 
applies,  an  extract  from  a  register,  or  a  certificate,  or  other  docu- 
ment stating  the  existence  of  the  copyright,  or  the  person  who  is  the 
proprietor  of  such  copyright,  or  is  for  the  purpose  of  any  legal  pro- 
ceedings in  the  United  Kingdom  deemed  to  be  entitled  to  such  copy- 
right, if  authenticated  by  the  official  seal  of  a  Minister  of  State  of 
the  said  foreign  country,  or  by  the  official  seal  or  the  signature  of  a 
British  diplomatic  or  consular  officer  acting  in  such  country,  shall  be 


306  THE   QUESTION   OF  COPYRIGHT. 

admissible  as  evidence  of  the  facts  named  therein,  and  all  courts 
shall  take  judicial  notice  of  every  such  official  seal  and  signature  as 
is  in  this  section  mentioned,  and  shall  admit  in  evidence,  without 
proof,  the  documents  authenticated  by  it. 

8. — (i.)  The  Copyright  Acts  shall,  subject  to  the  provisions  of  this 
Act,  apply  to  a  literary  or  artistic  work  first  produced  in  a  British 
possession  in  like  manner  as  they  apply  to  a  work  first  produced  in 
the  United  Kingdom  : 

Provided  that — 

(a)  the  enactments  respecting  the  registry  of  the  copyright  in  such 
work  shall  not  apply  if  the  law  of  such  possession  provides  for 
the  registration  of  such  copyright ;  and 

(6)  where  such  work  is  a  book  the  delivery  to  any  persons  or  body 
of  persons  of  a  copy  of  any  such  work  shall  not  be  required. 

(2.)  Where  a  register  of  copyright  in  books  is  kept  under  the  au- 
thority of  the  government  of  a  British  possession,  an  extract  from 
that  register  purporting  to  be  certified  as  a  true  copy  by  the  officer 
keeping  it,  and  authenticated  by  the  public  seal  of  the  British  pos- 
session, or  by  the  official  seal  or  the  signature  of  the  governor  of  a 
British  possession,  or  of  a  colonial  secretary,  or  of  some  secretary  or 
minister  administering  a  department  of  the  government  of  a  British 
possession,  shall  be  admissible  in  evidence  of  the  contents  of  that 
register,  and  all  courts  shall  take  judicial  notice  of  every  such  seal 
and  signature,  and  shall  admit  in  evidence,  without  further  proof, 
all  documents  authenticated  by  it. 

(3.)  Where  before  the  passing  of  this  Act  an  Act  or  ordinance  has 
been  passed  in  any  British  possession  respecting  copyright  in  any 
literary  or  artistic  works,  Her  Majesty  in  Council  may  make  an  Order 
modifying  the  Copyright  Acts  and  this  Act,  so  far  as  they  apply  to 
such  British  possession,  and  to  literary  and  artistic  works  first  pro- 
duced therein,  in  such  manner  as  to  Her  Majesty  in  Council  seems 
expedient. 

(4.)  Nothing  in  the  copyright  Acts  or  this  Act  shall  prevent  the 
passing  in  a  British  possession  of  any  Act  or  ordinance  respecting 
the  copyright  within  the  limits  of  such  possession  of  works  first  pro- 
duced in  that  possession. 

9.  Where  it  appears  to  Her  Majesty  expedient  that  an  Order  in 
Council  under  the  International  Copyright  Acts  made  after  the  pass- 
ing of  this  Act  as  respects  any  foreign  country,  should  not  apply 
to  any  British  possession,  it  shall  be  lawful  for  Her  Majesty  by  the 


THE   BRITISH   ACT   OF    1 886.  3°7 

same  or  any  other  Order  in  Council  to  declare  that  such  Order  and  fc 
the  International  Copyright  Acts  and  this  Act  shall  not,  and  the 
same  shall  not,  apply  to  such  British  possession,  except  so  far  as  is 
necessary  for  preventing  any  prejudice  to  any  rights  acquired  pre- 
viously to  the  date  of  such  Order ;  and  the  expressions  in  the  said 
Acts  relating  to  Her  Majesty's  dominions  shall  be  construed  accord- 
ingly ;  but  save  as  provided  by  such  declaration  the  said  Acts  and 
this  Act  shall  apply  to  every  British  possession  as  if  it  were  part  of 
the  United  Kingdom. 

10  — (i.)  It  shall  be  lawful  for  Her  Majesty  from  time  to  time  to 
make  Orders  in  Council  for  the  purpose  of  the  International  Copy- 
right Acts  and  this  Act,  for  revoking  or  altering  any  Order  in  Council 
previously  made  in  pursuance  of  the  said  Acts,  or  any  of  them. 

(2.)  Any  such  Order  in  Council  shall  not  affect  prejudicially  any 
rights  acquired  or  accrued  at  the  date  of  such  Order  coming  into 
operation,  and  shall  provide  for  the  protection  of  such  rights. 
II.  In  this  Act,  unless  the  context  otherwise  requires — 
The  expression  "literary  and  artistic  work"  means  every  book, 
print,  lithograph,  article  of  sculpture,  dramatic  piece,  musical  com- 
position, painting,  drawing,  photograph,  and  other  work  of  literature 
and  art  to  which  the  Copyright  Acts  or  the  International  Copyright 
Acts,  as  the  case  requires,  extend. 

The  expression  "  author "  means  the  author,  inventor,  designer, 
engraver,  or  maker  of  any  literary  or  artistic  work,  and  includes  any 
person  claiming  through  the  author  ;  and  in  the  case  of  a  posthu- 
mous work  means  the  proprietor  of  the  manuscript  of  such  work  and 
any  person  claiming  through  him  ;  and  in  the  case  of  an  encyclopae- 
dia, review,  magazine,  periodical  work,  or  work  published  in  a  series 
of  books  or  parts,  includes  the  proprietor,  projector,  publisher,  or 
conductor. 

The  expressions  "performed"  and  "performance"  and  similar 
words  include  representation  and  similar  words. 

The  expression  "  produced  "  means,  as  the  case  requires,  published 
or  made,  or,  performed  or  represented,  and  the  expression  "pro- 
duction "  is  to  be  construed  accordingly. 

The  expression  "  bookpublished  in  numbers  "  includes  any  review, 
magazine,  periodical  work,  work  published  in  a  series  of  books  or 
parts,  transactions  of  a  society  or  body,  and  other  books  of  which 
different  volumes  or  parts  are  published  at  different  times. 

The  expression  "  treaty  "  includes  any  convention  or  arrangement. 


308 


THE   QUESTION   OF   COPYRIGHT. 


The  expression  "British  possession  "  includes  any  part  of  Her 
Majesty's  dominions  exclusive  of  the  United  Kingdom  ;  and  where 
parts  of  such  dominions  are  under  both  a  central  and  a  local  legis- 
lature, all  parts  under  one  central  legislature  are  for  the  purposes  of 
this  definition  deemed  to  be  one  British  possession. 

12.   The   Acts   specified   in  the    Third    Schedule  to  this  Act  are 
hereby  repealed  as  from  the  passing  of  this  Act  to  the  extent  in  the 
third  column  of  that  schedule  mentioned  : 
Provided  as  follows: 

(a.)  Where  an  Order  in  Council  has  been  made  before  the  passing 
of  this  Act  under  the  said  Acts  as  respects  any  foreign  country 
the  enactments  hereby  repealed  shall  continue  in  full  force  as 
respects  that  country  until  the  said  Order  is  revoked. 
{b.)  The  said  repeal  and  revocation  shall  not  prejudice  any  rights 
acquired  previously  to  such  repeal  or  revocation,  and  such 
rights  shall  continue  and  may  be  enforced  in  like  manner 
as  if  the  said  repeal  or  revocation  had  not  been  enacted  or 
made. 


FIRST    SCHEDULE. 
International  Copyright  Acts. 

Part  I. 


Session  and  Chapter 


7  &  8  Vict.  c.  12 


iS  &  16  Vict.  c.  12 


39  Vict.  c.  12 


Title. 


An  Act  to  amend  the  law  relating  to 
International  Copyright. 

An  Act  to  enable  Her  Majesty  to 
carry  into  effect  a  convention  with 
France  on  the  subject  of  copyright, 
to  extend  and  explain  the  Interna- 
tional Copyright  Acts,  and  to  ex- 
plain the  Acts  relating  to  copyright 
in  engravings. 

An  Act  to  amend  the  law  relating  to 
International  Copyright. 


Short  Title. 


The    International 
Copyright     Act, 

1844. 

The    International 
Copyright     Act, 


The  International 
Copyright  Act. 
1875- 


THE   BRITISH   ACT  OF    1 886. 


309 


FIRST   SCHEDULE. 
Part  II. 


Session  and  Chapter 

Title. 

Enactment  referred 
to. 

25  &  26  Vict.  c.  68 

An  Act  for  amending  the  law  relat- 
ing to  copyright   in  works  of  the 
fine  arts,  and   for  repressing  the 
commission  of  fraud  in  the  produc- 
tion and  sale  of  such  works. 

Section  twelve. 

SECOND     SCHEDULE. 
Copyright  Acts. 


8  Geo.  2.  c.  13 


7  Geo.  3.  c.  38 


15  Geo.  3.  c.  53 


An  Act  for  the  encouragement  of 
the  arts  of  designing,  engraving, 
and  etching,  historical,  and  other 
prints  by  vesting  the  properties 
thereof  in  the  inventors  and  en- 
gravers during  the  time  therein- 
mentioned. 

An  Act  to  amend  and  render  more 
effectual  an  Act  made  in  the 
eighth  year  of  the  reign  of  King 
George  the  Second,  for  encourage- 
ment of  the  arts  of  designing,  en- 
graving, and  etching,  historical 
and  other  prints,  and  for  vesting 
in  and  securing  to  Jane  Hogarth, 
widow,  the  property  in  certain 
prints. 

An  Act  for  enabling  the  two  Uni- 
versities in  England,  the  four 
Universities  in  Scotland,  and  the 
several  Colleges  of  Eton,  West- 
minster, and  Winchester,  to  hold 
in  perpetuity  their  copyright  in 
books  given  or  bequeathed  to  the 
said  universities  and  colleges  for 
the  advancement  of  useful  learn- 
ing and  other  purposes  of  educa- 
tion ;  and  for  amending  so  much 
of  an  Act  of  the  eighth  year  of 
the  reign  of  Queen  Anne,  as  re- 
lates to  the  delivery  of  books  to 
the  warehouse-keeper  of  the  Sta- 
tioners' Company  for  the  use  of 
the  several  libraries  therein  men- 
tioned. 


The  Engraving 
Copyright  Act, 
1734- 


The  Engraving 
Copyright  Act, 
1766. 


The  Copyright  Act, 
1775- 


3IO  THE   QUESTION   OF   COPYRIGHT. 

SECOND    SCHEDULE— Continued. 


Session  and  Chapter 


17  Geo.  3.  c.  57 


54  Geo.  3.  c.  56 


3  Will.  4.  c.  15 


5  &  6  Will.  4.  c.  65 


6&  7  Will.  4.  c.  69 


6&7  Will.  4.  c.  no 


S  &  6  Vict.  c.  45 


10  &  11  Vict.  c.  95 


25  &  26  Vict.  c. 


An  Act  for  more  effectually  securing 
the  property  of  prints  to  inventors 
and  engravers  by  enabling  them  to 
sue  for  and  recover  penalties  in 
certain  cases. 

An  Act  to  amend  and  render  more 
effectual  an  Act  of  His  present 
Majesty  for  encouraging  the  art 
of  making  new  models  and  casts 
of  busts  and  other  things  therein 
mentioned,  and  for  giving  further 
encouragement  to  such  arts. 

An  Act  to  amend  the  laws  relating 
to  Dramatic  Literary  Property. 

An  Act  for  preventing  the  publica- 
tion of  Lectures  without  consent. 

An  Act  to  extend  the  protection  of 
copyright  in  prints  and  engrav- 
ings to  Ireland. 

An  Act  to  repeal  so  much  of  an  Act 
of  the  fifty-fourth  year  of  King 
George  the  Third,  respecting  copy- 
rights, as  requires  the  delivery  of 
a  copy  of  every  published  book  to 
the  libraries  of  Sion  College,  the 
four  Universities  of  Scotland,  and 
of  the  King's  Inns  in  Dublin. 

An  Act  to  amend  the  law  of  copy- 
right. 

An  Act  to  amend  the  law  relating  to 
the  protection  in  the  Colonies  of 
works  entitled  to  copyright  in  the 
United  Kingdom. 

An  Act  for  amending  the  law  relat- 
ing to  copyright  in  works  of  the 
fine  arts,  and  for  repressing  the 
commission  of  fraud  in  the  pro- 
duction and  sale  of  such  works. 


Short  Title. 


The    Prints   Copy- 
right Act,  1777. 


The    Sculpture 
Copyright     Act, 


The  Dramatic  Copy- 
right Act,  1833. 

The  Lectures  Copy- 
right Act,  1835. 

The  Prints  and  En- 
gravings Copy- 
right Act,  1836. 

The  Copyright 
Act,  1836. 


The  Copyright 
Act,  1842. 

The  Colonial  Copy- 
right Act,  1847. 


The  Fine  Arts 
Copyright  Act, 
1862. 


THE   BRITISH   ACT   OF    1 886. 


311 


THIRD    SCHEDULE. 
Acts  Repealed. 


Session  and  Chapter 


7&  8  Vict.  c.  12 


15  &  16  Vict.  c.  12 


25  &  26  Vict.  c.  68 


Title. 


An  Act  to  amend  the  law  relating 
to  international  copyright. 


An  Act  to  enable  Her  Majesty  to 
carry  into  effect  a  convention  with 
France  on  the  subject  of  copy- 
right, to  extend  and  explain  the 
International  Copyright  Acts,  and 
to  explain  the  Acts  relating  to 
copyright  engravings. 

An  Act  for  amending  the  law  relat- 
ing to  copyright  in  works  of  the 
fine  arts,  and  for  repressing  the 
commission  of  fraud  in  the  produc- 
tion and  sale  of  such  works. 


Extent  of  Repeal. 


Sections  fourteen, 
seventeen,  and 
eighteen. 

Sections  one  to 
five,  both  inclu- 
sive, and  sections 
eight  and  eleven. 


So  much  of  section 
twelve  as  incor- 
porates any  en- 
actment repealed 
by  this  Act. 


ORDER  IN  COUNCIL. 


At  the  Court  at  Windsor,  the  28th  day  of  November,  1887. 
Present, 
The  QUEEN'S  Most  Excellent  Majesty, 
Lord  President, 
Lord  Stanley  of  Preston, 
Secretary  Sir  Henry.  Holland,  Bart. 

WHEREAS  the  Convention  of  which  an  English  translation  is  set 
out  in  the  First  Schedule  to  this  Order  has  been  concluded  between 
her  Majesty  the  Queen  of  the  United  Kingdom  of  Great  Britain 
and  Ireland  and  the  foreign  countries  named  in  this  Order,  with 
respect  to  the  protection  to  be  given  by  way  of  copyright  to  the 
authors  of  literary  and  artistic  works  : 

And  whereas  the  ratifications  of  the  said  Convention  were  ex- 
changed on  the  fifth  day  of  September  one  thousand  eight  hundred 
and  eighty-seven,  between  Her  Majesty  the  Queen  and  the  Govern- 
ments of  the  foreign  countries  following,  that  is  to  say  : 

Belgium  ;  France  ;  Germany  ;  Hayti  ;  Italy  ;  Spain  ;  Switzer- 
land ;  Tunis  : 

21 


312  THE   QUESTION   OF   COPYRIGHT. 

And  whereas  Her  Majesty  in  Council  is  satisfied  that  the  foreign 
countries  named  in  this  Order  have  made  such  provisions  as  it 
appears  to  Her  Majesty  expedient  to  require  for  the  protection  of 
authors  of  works  first  produced  in  Her  Majesty's  dominions  : 

Now,  therefore,  Her  Majesty,  by  and  with  the  advice  of  her  Privy 
Council,  and  by  virtue  of  the  authority  committed  to  Her  by  the 
International  Copyright  Acts,  1844  to  1886,  doth  order  ;  and  it  is 
hereby  ordered,  as  follows  : 

1.  The  Convention  as  set  forth  in  the  First  Schedule  to  this 
Order,  shall,  as  from  the  commencement  of  this  Order,  have  full 
effect  throughout  Her  Majesty's  dominions,  and  all  persons  are  en- 
joined to  observe  the  same. 

2.  This  Order  shall  extend  to  the  foreign  countries  following, 
that  is  to  say  :  Belgium  ;  France  ;  Germany  ;  Hayti  ;  Italy  ;  Spain  ; 
Switzerland  ;  Tunis  ;  and  the  above  countries  are  in  this  Order 
referred  to  as  the  foreign  countries  of  the  Copyright  Union,  and 
those  foreign  countries,  together  with  Her  Majesty's  dominions,  are 
in  this  Order  referred  to  as  the  countries  of  the  Copyright  Union. 

3.  The  author  of  a  literary  or  artistic  work  which,  on  or  after  the 
commencement  of  this  Order,  is  first  produced  in  one  of  the  foreign 
countries  of  the  Copyright  Union  shall,  subject  as  in  this  Order  and 
in  the  International  Copyright  Acts,  1844  to  1886,  mentioned,  have 
as  respects  that  work  throughout  Her  Majesty's  dominions,  the  same 
right  of  copyright,  including  any  right  capable  of  being  conferred 
by  an  Order  in  Council  under  section  two  or  section  five  of  the 
International  Copyright  Act,  1844,  or  under  any  other  enactment, 
as  if  the  work  had  been  first  produced  in  the  United  Kingdom,  and 
shall  have  such  right  during  the  same  period  ; 

Provided,  that  the  author  of  a  literary  or  artistic  work  shall  not 
have  any  greater  right  or  longer  term  of  copyright  therein,  than  that 
which  he  enjoys  in  the  country  in  which  the  work  is  first  produced. 

The  author  of  any  literary  or  artistic  work  first  produced  before 
the  commencement  of  this  Order  shall  have  the  rights  and  remedies 
to  which  he  is  entitled  under  section  six  of  the  International  Copy- 
right Act,  1886. 

4.  The  rights  conferred  by  the  International  Copyright  Acts,  1844 
to  1886,  shall,  in  the  case  of  a  literary  or  artistic  work  first  produced 
in  one  of  the  foreign  countries  of  the  Copyright  Union  by  an 
author  who  is  not  a  subject  or  citizen  of  any  of  the  said  foreign 
countries,  be  limited  as  follows,  that  is  to  say,  the  author  shall  not 


THE   BRITISH   ACT   OF    1 886.  313 

be  entitled  to  take  legal  proceedings  in  Her  Majesty's  dominions  for 
protecting  any  copyright  in  such  work,  but  the  publisher  of  such 
work  shall,  for  the  purpose  of  any  legal  proceedings  in  Her 
Majesty's  dominions  for  protecting  any  copyright  in  such  work,  be 
deemed  to  be  entitled  to  such  copyright  as  if  he  were  the  author, 
but  without  prejudice  to  the  rights  of  such  author  and  publisher  as 
between  themselves. 

5.  A  literary  or  artistic  work  first  produced  simultaneously  in  two 
or  more  countries  of  the  Copyright  Union  shall  be  deemed  for  the 
purpose  of  copyright  to  have  been  first  produced  in  that  one  of  those 
countries  in  which  the  term  of  copyright  in  the  work  is  shortest. 

6.  Section  six  of  the  International  Copyright  Act,  1852,  shall  not 
apply  to  any  dramatic  piece  to  which  protection  is  extended  by  virtue 
of  this  Order. 

7.  The  Orders  mentioned  in  the  Second  Schedule  to  this  Order  are 
hereby  revoked  ; 

Provided  that  neither  such  revocation,  nor  anything  else  in  this 
Order,  shall  prejudicially  affect  any  right  acquired  or  accrued  before 
the  commencement  of  this  Order,  by  virtue  of  any  Order  hereby  re- 
voked, and  any  person  entitled  to  such  right  shall  continue  entitled 
thereto,  and  to  the  remedies  for  the  same,  in  like  manner  as  if  this 
Order  had  not  been  made. 

8.  This  Order  shall  be  construed  as  if  it  formed  part  of  the  Inter- 
national Copyright  Act,  1886. 

9.  This  Order  shall  come  into  operation  on  the  sixth  day  of  Decem- 
ber, one  thousand  eight  hundred  and  eighty-seven,  which  day  is  in 
this  Order  referred  to  as  the  commencement  of  this  Order. 

And  the  Lords  Commissioners  of  Her  Majesty's  Treasury  are  to 
give  the  necessary  orders  herein  accordingly. 

C.  L.  Peel. 


XVII. 

SUMMARY  OF  THE  REPORT  OF  THE 
INTERNATIONAL  COPYRIGHT  CON- 
VENTION OF  SOUTH  AMERICA, 
HELD    AT    MONTEVIDEO,     JANUARY 

ii,  1889. 

The  Congress  held  at  Montevideo  for  the  revision 
of  international  laws  came  to  some  important  de- 
cisions regarding  international  copyright.  The 
seven  states  represented  were  the  Argentine  Re- 
public, Bolivia,  Brazil,  Chili,  Paraguay,  Peru,  and 
Uruguay.  In  the  main  the  articles  of  agreement 
closely  followed  the  provisions  of  the  Berne  Con- 
ference of  1886.  We  briefly  summarize  a  few  im- 
portant differences  : 

1.  The  South  American  treaty  secures  its  benefits  to  all  authors 
who  have  published  a  work  in  one  of  the  contracting  states,  without 
regard  to  his  nationality.  The  Convention  of  Berne  only  protects 
authors  born  in  one  of  the  contracting  countries.  It  modifies  this 
rule  by  protecting  the  publisher  of  a  work  issued  in  one  of  the 
countries  of  the  Union,  although  the  author  is  an  alien.  The  pro- 
tection to  the  work  is  the  same,  but  it  is  the  publisher  who  profits 
by  it. 

2.  In  South  America  the  rights  for  translations  are  exactly  the 
same  as  the  right  of  the  author  in  the  original  work,  whereas  the 
Berne  Conference  only  assures  the  exclusive  right  of  translation  up 
to  the  expiration  of  ten  years  from  the  date  of  publication  of  the 
original  work  in  one  of  the  countries  of  the  Union. 

3.  In  the  enumeration  of  what  is  understood  under  the  expression 


THE   MONTEVIDEO   CONVENTION.  315 

"literary  and  artistic  works,"  photographs  and  choregraphic  works 
are  specifically  mentioned,  whereas  the  Berne  Conference  merely 
makes  a  general  mention  of  processes  of  reproduction. 

4.  The  treaty  of  South  America  contains  no  clause  relating  to  pub- 
lic performances  or  representations  of  protected  works,  whereas  the 
Berne  Conference  decrees  that  such  works  shall  not  be  publicly  per- 
formed or  reprinted  if  the  author  has  declared  on  the  title-page  that 
he  forbids  public  performances,  which  declaration  makes  such  per- 
formances a  violation  of  original  copyright. 

5.  The  South  American  treaty  may  be  extended  to  other  nations 
which  did  not  take  part  in  the  Congress.  The  Berne  Convention 
guarantees  admission  to  such  countries  as  shall  assure  within  their 
jurisdiction  the  protection  which  is  the  object  of  the  Convention. 

6.  The  South  American  treaty  says  nothing  of  the  formalities  of 
registering  and  depositing  works  to  be  protected.  According  to  the 
Berne  Convention  these  formalities  can  only  be  exacted  in  the 
country  of  origin  and  according  to  the  laws  enacted  by  that  country. 

7.  The  South  American  treaty  makes  no  mention  of  works  pub- 
lished before  its  going  into  force,  whereas  the  Berne  Convention  has 
made  provision  in  a  special  protocol  for  works  published  before  its 
decisions  went  into  force. 

It  may  be  of  interest  to  note  that  these  contracting  South  Ameri- 
can countries  represent  a  total  population  of  24,800.000. 

The  treaty  embodying  these  points  was  signed  by  the  delegates  of^ 
the  seven  states,  and  it  is  to  go  into  operation  between  such  states  as' 
may  ratify  it  as  soon  as  ratified  by  them,  no  time  being  specified 
for  such  ratification.1 

1  The  above  summary  is  based  upon  the  report  of  the  Publishers' 
Weekly. — Editor. 


XVIII. 

STATES  WHICH  HAVE  BECOME  PARTIES 
TO  THE  CONVENTION  OF  BERNE,  JAN- 
UARY, 1896. 

Germany. 

France,  with  Algeria  and  Colonies. 
Great  Britain,  with  Colonies. 
Hayti. 
Italy. 
Belgium. 

Spain,  with  Colonies. 
'    Luxembourg. 
Morocco. 
Montenegro. 
Switzerland. 
Tunis. 


XIX. 

THE  NATURE  AND  ORIGIN  OF  COPY- 
RIGHT. 

By  R.  R.  Bowker. 

Copyright  (from  the  Latin  copia,  plenty)  means, 
in  general,  the  right  to  copy,  to  make  plenty.  In 
its  specific  application  it  means  the  right  to  multiply 
copies  of  those  products  of  the  human  brain  known 
as  literature  and  art. 

There  is  another  legal  sense  of  the  word  "  copy- 
right "  much  emphasized  by  several  English  justices. 
Through  the  low  Latin  use  of  the  word  copia,  our 
word  "  copy  "  has  a  secondary  and  reversed  mean- 
ing, as  the  pattern  to  be  copied  or  made  plenty,  in 
which  sense  the  schoolboy  copies  from  the  "copy" 
set  in  his  copy-book,  and  the  modern  printer  calls 
for  the  author's  "  copy."  Copyright,  accordingly, 
may  also  mean  the  right  in  copy  made  (whether  the 
original  work  or  a  duplication  of  it),  as  well  as  the 
right  to  make  copies,  which  by  no  means  goes  with 
the  work  or  any  duplicate  of  it.  Said  Lord  St. 
Leonards:  "  When  we  are  talking  of  the  right  of  an 
author  we  must  distinguish  between  the  mere  right 


318  THE   QUESTION   OF  COPYRIGHT. 

to  his  manuscript,  and  to  any  copy  which  he  may 
choose  to  make  of  it,  as  his  property,  just  like  any 
other  personal  chattel,  and  the  right  to  multiply 
copies  to  the  exclusion  of  every  other  person.  Noth- 
ing can  be  more  distinct  than  these  two  things. 
The  common  law  does  give  a  man  who  has  com- 
posed a  work  a  right  to  it  as  composition,  just  as 
he  has  a  right  to  any  other  part  of  his  personal 
property  ;  but  the  question  of  the  right  of  excluding 
all  the  world  from  copying,  and  of  himself  claiming 
the  exclusive  right  of  forever  copying  his  own  com- 
position after  he  has  published  it  to  the  world,  is  a 
totally  different  thing."  Baron  Parks,  in  the  same 
case,  pointed  out  expressly  these  two  different  legal 
senses  of  the  word  copyright,  the  right  in  copy,  a 
right  of  possession,  always  fully  protected  by  the 
common  law,  and  the  right  to  copy,  a  right  of  mul- 
tiplication, which  alone  has  been  the  subject  of 
special  statutory  protection. 

There  is  nothing  which  may  more  properly  be 
called  property  than  the  creation  of  the  individual 
brain.  For  property  means  a  man's  very  own,  and 
there  is  nothing  more  his  own  than  the  thought, 
created,  made  out  of  no  material  thing  (unless  the 
nerve-food  which  the  brain  consumes  in  the  act  of 
thinking  be  so  counted),  which  uses  material  things 
only  for  its  record  or  manifestation.  The  best 
proof  of  tfww-ership  is  that,  if  this  individual  man  or 
woman  had  not  thought  this  individual  thought, 
realized  in  writing  or  in  music  or  in  marble,  it  would 
not  exist.  Or  if  the  individual,  thinking  it,  had  put 
it  aside  without  such  record,  it  would  not,  in  any 


THE   NATURE   AND    ORIGIN   OF   COPYRIGHT.    319 

practical  sense,  exist.  We  cannot  know  what  "  might 
have  beens  "  of  untold  value  have  been  lost  to  the 
world  where  thinkers,  such  as  inventors,  have  had 
no  inducement  or  opportunity  to  so  materialize 
their  thoughts. 

It  is  sometimes  said,  as  a  bar  to  this  idea  of  prop- 
erty, that  no  thought  is  new — that  every  thinker  is 
dependent  upon  the  gifts  of  nature  and  the  thoughts 
of  other  thinkers  before  him,  as  every  tiller  of  the 
soil  is  dependent  upon  the  land  as  given  by  nature 
and  improved  by  the  men  who  have  toiled  and 
tilled  before  him — a  view  of  which  Henry  C.  Carey 
has  been  the  chief  exponent  in  this  country.  But 
there  is  no  real  analogy — aside  from  the  question 
whether  the  denial  of  individual  property  in  land 
would  not  be  setting  back  the  hands  of  progress.  If 
Farmer  Jones  does  not  raise  potatoes  from  a  piece 
of  land,  Farmer  Smith  can ;  but  Shakespeare  can- 
not write  Paradise  Lost  nor  Milton  Much  Ado, 
though  before  both  Dante  dreamed  and  Boccaccio 
told  his  tales.  It  was  because  of  Milton  and  Shake- 
speare writing,  not  because  of  Dante  and  Boccaccio, 
who  had  written,  that  these  immortal  works  are 
treasures  of  the  English  tongue.  It  was  the  very 
self  of  each,  in  propria  persona,  that  gave  these  form 
and  worth,  though  they  used  words  that  had  come 
down  from  generations  as  the  common  heritage  of 
English-speaking  men.  Property  in  a  stream  of 
water,  as  has  been  pointed  out,  is  not  in  the  atoms 
of  the  water  but  in  the  flow  of  the  stream. 

Property  right  in  unpublished  works  has  never 
been  effectively  questioned — a  fact  which  in  itself 


320  THE   QUESTION   OF  COPYRIGHT. 

confirms  the  view  that  intellectual  property  is  a 
natural  inherent  right.  The  author  has  "  supreme 
control "  over  an  unpublished  work,  and  his  manu- 
script cannot  be  utilized  by  creditors  as  assets  with- 
out his  consent.  "  If  he  lends  a  copy  to  another," 
says  Baron  Parkes,  "  his  right  is  not  gone ;  if  he 
sends  it  to  another  under  an  implied  undertaking 
that  he  is  not  to  part  with  it  or  publish  it  he  has  a 
right  to  enforce  that  undertaking."  The  receiver  of 
a  letter,  to  whom  the  paper  containing  the  writing 
has  undoubtedly  been  given,  has  no  right  to  publish 
or  otherwise  use  the  letter  without  the  writer's  con- 
sent. The  theory  that,  by  permitting  copies  to  be 
made,  an  author  dedicates  his  writing  to  the  public, 
as  an  owner  of  land  dedicates  a  road  to  the  public 
by  permitting  public  use  of  it  for  twenty-one  years, 
overlooks  the  fact  that  in  so  doing  the  author  only 
conveys  to  each  holder  of  his  book  the  right  to  indi- 
vidual use,  and  not  the  right  to  multiply  copies ;  as 
though  the  landowner  should  not  give,  but  sell,  per- 
mission to  individuals  to  pass  over  his  road,  without 
any  permission  to  them  to  sell  tickets  for  the  same 
privilege  to  other  people.  The  owner  of  a  right  does 
not  forfeit  a  right  by  selling  a  privilege. 

It  is  at  the  moment  of  publication  that  the  un- 
disputed possessory  right  passes  over  into  the  much- 
disputed  right  to  multiply  copies,  and  that  the  vexed 
question  of  the  true  theory  of  copyright  property 
arises.  The  broad  view  of  literary  property  holds 
that  the  one  kind  of  copyright  is  involved  in  the 
other.  The  right  to  have  is  the  right  to  use.  An 
author  cannot  use — that    is,   get    beneficial  results 


THE   NATURE  AND    ORIGIN   OF  COPYRIGHT.   321 

from — his  work,  without  offering  copies  for  sale.  He 
would  be  otherwise  like  the  owner  of  a  loaf  of  bread 
who  was  told  that  the  bread  was  his  until  he  wanted 
to  eat  it.  That  sale  would  seem  to  contain  "  an  im- 
plied undertaking  "  that  the  buyer  has  liberty  to  use 
his  copy  but  not  to  multiply  it.  Peculiarly  in  this 
kind  of  property  the  right  of  ownership  consists  in 
the  right  to  prevent  use  of  one's  property  by  others 
without  the  owner's  consent.  The  right  of  exclu- 
sion seems  to  be,  indeed,  a  part  of  ownership.  In  the 
case  of  land  the  owner  is  entitled  to  prevent  trespass 
to  the  extent  of  a  shot-gun,  and  in  the  same  way, 
the  law  recognizes  the  right  to  use  violence,  even  to 
the  extreme,  in  preventing  others  from  possession 
of  one's  own  property  of  any  kind.  The  owner  of 
a  literary  property  has,  however,  no  physical  means 
of  defence  or  redress  ;  the  very  act  of  publication  by 
which  he  gets  a  market  for  his  productions  opens 
him  to  the  danger  of  wider  multiplication  and  pub- 
lication without  his  consent.  There  is,  therefore,  no 
kind  of  property  which  is  so  dependent  on  the  help 
of  the  law  for  the  protection  of  the  real  owner. 

The  inherent  right  of  authors  is  a  right  at  what  is 
called  common  law — that  is,  natural  or  customary 
law.  So  far  as  concerns  the  undisputed  rights  be- 
fore publication,  the  copyright  laws  are  auxiliary 
merely  to  common  law.  Rights  exist  before  reme- 
dies ;  remedies  are  merely  invented  to  enforce  rights. 
"  The  seeking  for  the  law  of  the  right  of  property  in 
the  law  of  procedure  relating  to  the  remedies,"  says 
Copinger,  "  is  a  mistake  similar  to  supposing  that  the 
mark  on  the  ear  of  an  animal  is  the  cause,  instead 

21 


322  THE    QUESTION   OF   COPYRIGHT. 

of  the  consequence,  of  property  therein."  After 
the  invention  of  printing  it  became  evident  that 
new  methods  of  procedure  must  be  devised  to  en- 
force common  law  rights.  Copyright  became,  there- 
fore, the  subject  of  statute  law,  by  the  passage  of 
laws  imposing  penalties  for  a  theft  which,  without 
such  laws,  could  not  be  punished. 

These  laws,  covering,  naturally  enough,  only  the 
country  of  the  author,  and  specifying  a  time  during 
which  the  penalties  could  be  enforced,  and  providing 
means  of  registration  by  which  authors  could  regis- 
ter their  property  rights,  as  the  title  to  a  house  is 
registered  when  it  is  sold,  had  an  unexpected  result. 
The  statute  of  Anne,  which  is  the  foundation  of 
present  English  copyright  law,  intended  to  protect 
authors'  rights  by  providing  penalties  against  their 
violation,  had  the  effect  of  limiting  those  rights.  It 
was  doubtless  the  intention  of  those  who  framed 
the  statute  of  Anne  to  establish,  for  the  benefit  of 
authors,  specific  means  of  redress.  Overlooking, 
apparently,  the  fact  that  law  and  equity,  as  their 
principles  were  then  established,  enabled  authors  to 
use  the  same  means  of  redress,  so  far  as  they  held 
good,  which  persons  suffering  wrongs  as  to  other 
property  had,  the  law  was  so  drawn  that,  in  I774> 
the  English  House  of  Lords  (against,  however,  the 
weight  of  one  half  of  English  judicial  opinion)  de- 
cided that,  instead  of  giving  additional  sanction  to  a 
formerly  existing  right,  the  statute  of  Anne  had 
substituted  a  new  and  lesser  right,  to  the  exclusion 
of  what  the  majority  of  English  judges  held  to  have 
been  an  old  and  greater  right.     Literary  and  like 


THE   NATURE   AND    ORIGIN   OF   COPYRIGHT.    $2$ 

property  to  this  extent  lost  the  character  of  copy- 
right,  and  became  the  subject  of  copy --privilege,  de- 
pending on  legal  enactment  for  the  security  of  the 
private  owner.  American  courts,  wont  to  follow 
English  precedent,  have  rather  taken  for  granted 
this  view  of  the  law  of  literary  property,  and  our 
Constitution,  in  authorizing  Congress  to  secure  "  for 
limited  terms  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  discoveries," 
was  evidently  drawn  from  the  same  point  of  view, 
though  it  does  not  in  itself  deny  or  withdraw  the 
natural  rights  of  the  author  at  common  law. 


XX. 

THE  EVOLUTION  OF  COPYRIGHT. 

By  Brander  Matthews. 
(Reprinted  from  the  Political  Science  Quarterly.) 

"  THE  only  thing  that  divides  us  on  the  question 
of  copyright  seems  to  be  a  question  as  to  how  much 
property  there  is  in  books,"  said  James  Russell 
Lowell,  two  or  three  years  ago  ;  and  he  continued, 

' '  but  that  is  a  question  we  may  be  well  content  to  waive  till  we  have 
decided  that  there  is  any  property  at  all  in  them.  I  think  that,  in 
order  that  the  two  sides  should  come  together,  nothing  more  is  neces- 
sary than  that  both  should  understand  clearly  that  property,  whether 
in  books  or  in  land  or  in  anything  else,  is  artificial ;  that  it  is  purely 
a  creature  of  law  ;  and,  more  than  that,  of  lo'cal  and  municipal  law. 
When  we  have  come  to  an  agreement  of  this  sort,  I  think  we  shall  not 
find  it  difficult  to  come  to  an  agreement  that  it  will  be  best  for  us  to 
get  whatever  acknowledgment  of  property  we  can,  in  books,  to  start 
with." 

"  An  author  has  no  natural  right  to  a  property  in 
his  production,"  said  the  late  Matthew  Arnold,  in 
his  acute  and  suggestive  essay  on  copyright, 

"  but  then  neither  has  he  a  natural  right  to  anything  whatever  which 
he  may  produce  or  acquire.  What  is  true  is  that  a  man  has  a  strong 
instinct  making  him  seek  to  possess  what  he  has  produced  or  ac- 
quired, to  have  it  at  his  own  disposal  ;  that  he  finds  pleasure  in  so 
having  it,  and  finds  profit.  The  instinct  is  natural  and  salutary, 
although  it  may  be  over-stimulated  and  indulged  to  excess.     One  of 


THE  EVOLUTION  OF  COPYRIGHT.  325 

the  first  objects  of  men,  in  combining  themselves  in  society,  has  been 
to  afford  to  the  individual,  in  his  pursuit  of  this  instinct,  the  sanction 
and  assistance  of  the  laws,  so  far  as  may  be  consistent  with  the  gen- 
eral advantage  of  the  community.  The  author,  like  other  people, 
seeks  the  pleasure  and  the  profit  of  having  at  his  own  disposal  what 
he  produces.  Literary  production,  wherever  it  is  sound,  is  its  own 
exceeding  great  reward  ;  but  that  does  not  destroy  or  diminish  the 
author's  desire  and  claim  to  be  allowed  to  have  at  his  disposal,  like 
other  people,  that  which  he  produces,  and  to  be  free  to  turn  it  to 
account.  It  happens  that  the  thing  which  he  produces  is  a  thing 
hard  for  him  to  keep  at  his  own  disposal,  easy  for  other  people  to 
appropriate  ;  but  then,  on  the  other  hand,  he  is  an  interesting  pro- 
ducer, giving  often  a  great  deal  of  pleasure  by  what  he  produces,  and 
not  provoking  Nemesis  by  any  huge  and  immoderate  profits  on  his 
production,  even  when  it  is  suffered  to  be  at  his  own  disposal.  So 
society  has  taken  him  under  its  protection,  and  has  sanctioned  his 
property  in  his  work,  and  enabled  him  to  have  it  at  his  own  disposal." 

Perhaps  a  consideration  of  the  evolution  of  copy- 
right in  the  past  will  conduce  to  a  closer  understand- 
ing of  its  condition  at  present,  and  to  a  clearer 
appreciation  of  its  probable  development  in  the 
future.  It  is  instructive  as  well  as  entertaining  to 
trace  the  steps  by  which  men,  combining  themselves 
in  society,  in  Arnold's  phrase,  have  afforded  to  the 
individual  author  the  sanction  of  the  law  in  possess- 
ing what  he  has  produced  ;  and  it  is  no  less  in- 
structive to  note  the  successive  enlargements  of 
jurisprudence  by  which  property  in  books — which 
is,  as  Lowell  says,  the  creature  of  local  municipal 
law — has  slowly  developed  until  it  demands  and  re- 
ceives international  recognition. 

I. 

The  maxim  that  "  there  is  no  wrong  without  a 
remedy,"  indicates  the  line  of   legal  development. 


326  THE   QUESTION   OF   COPYRIGHT. 

The  instinct  of  possession  is  strong;  and  in  the 
early  communities,  where  most  things  were  in  com- 
mon, it  tended  more  and  more  to  assert  itself. 
When  anything  which  a  man  claimed  as  his  own 
was  taken  from  him,  he  had  a  sense  of  wrong,  and 
his  first  movement  was  to  seek  vengeance— much  as 
a  dog  defends  his  bone,  growling  when  it  is  taken 
from  him,  or  even  biting.  If  public  opinion  sup- 
ported the  claim  of  possession,  the  claimant  would 
be  sustained  in  his  effort  to  get  revenge.  So,  from 
the  admission  of  a  wrong,  would  grow  up  the  recog- 
nition of  a  right.  The  moral  right  became  a  legal 
right  as  soon  as  it  received  the  sanction  of  the  State. 
The  State  first  commuted  the  right  of  vengeance, 
and  awarded  damages,  and  the  action  of  tort  was 
born.  For  a  long  period  property  was  protected 
only  by  the  action  for  damages  for  disseizin  ;  but 
this  action  steadily  widened  in  scope  until  it  became 
an  action  for  recovery ;  and  the  idea  of  possession 
or  seizin  broadened  into  the  idea  of  ownership. 
This  development  went  on  slowly,  bit  by  bit  and 
day  by  day,  under  the  influence  of  individual  self- 
assertion  and  the  resulting  pressure  of  public  opin- 
ion, which,  as  Lowell  once  tersely  put  it,  is  like 
that  of  the  atmosphere:  "You  can't  see  it,  but  it  is 
fifteen  pounds  to  the  square  inch  all  the  same." 

The  individual  sense  of  wrong  stimulates  the 
moral  growth  of  society  at  large  ;  and  in  due  course 
of  time,  after  a  strenuous  struggle  with  those  who 
profit  by  the  denial  of  justice,  there  comes  a  calm  at 
last,  and  ethics  crystallize  into  law.  In  more  mod- 
ern periods  of  development,  the  recognition  of  new 


THE   EVOLUTION   OF   COPYRIGHT.  327 

forms  of  property  generally  passes  through  three 
stages.  First,  there  is  a  mere  moral  right,  asserted 
by  the  individual  and  admitted  by  most  other  indi- 
viduals, but  not  acknowledged  by  society  as  a  whole. 
Second,  there  is  a  desire  on  the  part  of  those  in 
authority  to  find  some  means  of  protection  for  this 
admitted  moral  right,  and  the  action  in  equity  is 
allowed — this  being  an  effort  to  command  the  con- 
science of  those  whom  the  ordinary  policeman  is 
incompetent  to  deal  with.  And  thirdly,  in  the  full- 
ness of  time,  there  is  declared  a  law  setting  forth 
clearly  the  privileges  of  the  producer  and  the  means 
whereby  he  can  defend  his  property  and  recover 
damages  for  an  attack  on  it.  This  process  of  legis- 
lative declaration  of  rights  is  still  going  on  all  about 
us  and  in  all  departments  of  law,  as  modern  life  de- 
velops and  spreads  out  and  becomes  more  and  more 
complex ;  and  we  have  come  to  a  point  where  we 
can  accept  Jhering's  definition  of  a  legal  right  as  "a 
legally  protected  interest." 

As  it  happens,  this  growth  of  a  self-asserted  claim 
into  a  legally  protected  interest  can  be  traced  with 
unusual  ease  in  the  evolution  of  copyright,  because 
copyright  itself  is  comparatively  a  new  thing.  The 
idea  of  property  was  probably  first  recognized  in 
the  tools  which  early  man  made  for  himself,  and  in 
the  animals  or  men  whom  he  subdued  ;  later,  in  the 
soil  which  he  cultivated.  In  the  beginning  the  idea 
attached  only  to  tangible  things — to  actual  physical 
possession — to  that  which  a  man  might  pass  from 
hand  to  hand.  Now,  in  the  dawn  of  history  nothing 
was  less  a  physical  possession  than  literature  ;  it  was 


328  THE   QUESTION   OF   COPYRIGHT. 

not  only  intangible,  it  was  invisible  even.  There 
was  literature  before  there  was  any  writing,  before 
an  author  could  set  down  his  lines  in  black  and 
white.  Homer  and  the  rhapsodists  published  their 
poems  by  word  of  mouth.  Litera  scripta  manet  ; 
but  the  spoken  poem  flew  away  with  the  voice  of 
the  speaker  and  lingered  only  in  the  memory.  Even 
after  writing  was  invented,  and  after  parchment  and 
papyrus  made  it  possible  to  preserve  the  labors  of 
the  poet  and  the  historian,  these  authors  had  not, 
for  many  a  century  yet,  any  thought  of  making 
money  by  multiplying  copies  of  their  works. 

The  Greek  dramatists,  like  the  dramatists  of  to- 
day, relied  for  their  pecuniary  reward  on  the  public 
performance  of  their  plays.  There  is  a  tradition 
that  Herodotus,  when  an  old  man,  read  his  History 
to  an  Athenian  audience  at  the  Panathenaic  festival, 
and  so  delighted  them  that  they  gave  him  as  a 
recompense  ten  talents — more  than  twelve  thou- 
sand dollars  of  our  money.  In  Rome,  where  there 
were  booksellers  having  scores  of  trained  slaves  to 
transcribe  manuscripts  for  sale,  perhaps  the  success- 
ful author  was  paid  for  a  poem,  but  we  find  no  trace 
of  copyright  or  of  anything  like  it.  Horace  (Ars 
Poetica,  345)  speaks  of  a  certain  book  as  likely  to 
make  money  for  a  certain  firm  of  booksellers.  In 
the  other  Latin  poets,  and  even  in  the  prose  writers 
of  Rome,  we  read  more  than  one  cry  of  suffering 
over  the  blunders  of  the  copyists,  and  more  than 
one  protest  in  anger  against  the  mangled  manu- 
scripts of  the  hurried,  servile  transcribers.  But 
nowhere  do  we  find  any  complaint  that  the  author's 


THE  EVOLUTION   OF  COPYRIGHT.  329 

rights  have  been  infringed;  and  this,  no  doubt,  was 
because  the  author  did  not  yet  know  that  he  had 
any  wrongs.  Indeed,  it  was  only  after  the  inven- 
tion of  printing  that  an  author  had  an  awakened 
sense  of  the  injury  done  him  in  depriving  him  of 
the  profit  of  vending  his  own  writings ;  because  it 
was  only  after  Gutenberg  had  set  up  as  a  printer 
that  the  possibility  of  definite  profit  from  the  sale 
of  his  works  became  visible  to  the  author.  Before 
then  he  had  felt  no  sense  of  wrong ;  he  had  thought 
mainly  of  the  honor  of  a  wide  circulation  of  his 
writings ;  and  he  had  been  solicitous  chiefly  about 
the  exactness  of  the  copies.  With  the  invention  of 
printing  there  was  a  chance  of  profit  ;  and  as  soon 
as  the  author  saw  this  profit  diminished  by  an  un- 
authorized reprint,  he  was  conscious  of  injury,  and 
he  protested  with  all  the  strength  that  in  him  lay. 
He  has  continued  to  protest  from  that  day  to  this ; 
and  public  opinion  has  been  aroused,  until  by  slow 
steps  the  author  is  gaining  the  protection  he  claims. 

It  is  after  the  invention  of  printing  that  we  must 
seek  the  origin  of  copyright.  Mr.  De  Vinne  shows 
that  Gutenberg  printed  a  book  with  movable  types, 
at  Mentz,  in  145 1.  Fourteen  years  later,  in  1465, 
two  Germans  began  to  print  in  a  monastery  near 
Rome,  and  removed  to  Rome  itself  in  1467;  and  in 
1469  John  of  Spira  began  printing  in  Venice.  Louis 
XI.  sent  to  Mentz  Nicholas  Jenson,  who  introduced 
the  art  into  France  in  1469.  Caxton  set  up  the 
first  press  in  England  in  1474. 

In  the  beginning  these  printers  were  publishers  also; 
most  of  their  first  books  were  Bibles,  prayer-books, 


330  THE   QUESTION   OF  COPYRIGHT. 

and  the  like ;  but  in  1465,  probably  not  more  than 
fifteen  years  after  the  first  use  of  movable  types, 
Fust  and  Schoeffer  put  forth  an  edition  of  Cicero's 
Offices — "  the  first  tribute  of  the  new  art  to  polite 
literature,"  Hallam  calls  it.  The  original  editing  of 
the  works  of  a  classic  author,  the  comparison  of 
manuscripts,  the  supplying  of  lacuna,  the  revision 
of  the  text,  called  for  scholarship  of  a  high  order ; 
this  scholarship  was  sometimes  possessed  by  the 
printer-publisher  himself ;  but  more  often  than  not 
he  engaged  learned  men  to  prepare  the  work  for  him 
and  to  see  it  through  the  press.  This  first  edition 
was  a  true  pioneer's  task ;  it  was  a  blazing  of  the 
path  and  a  clearing  of  the  field.  Once  done,  the 
labor  of  printing  again  that  author's  writings  in  a 
condition  acceptable  to  students  would  be  easy. 
Therefore  the  printer-publisher  who  had  given  time 
and  money  and  hard  work  to  the  proper  presenta- 
tion of  a  Greek  or  Latin  book  was  outraged  when  a 
rival  press  sent  forth  a  copy  of  his  edition,  and  sold 
the  volume  at  a  lower  price,  possibly,  because  there 
had  been  no  need  to  pay  for  the  scholarship  which 
the  first  edition  had  demanded.  That  the  earliest 
person  to  feel  the  need  of  copyright  production 
should  have  been  a  printer-publisher  is  worthy  of 
remark  ;  obviously,  in  this  case,  the  printer-publisher 
stood  for  the  author  and  was  exactly  in  his  position. 
He  was  prompt  to   protest  against  this  disseizin  ' 

1  If  any  lawyer  objects  to  the  use  of  the  word  "  disseizin  "  in  con- 
nection with  other  than  real  property,  he  is  referred  to  Prof.  J.  B. 
Ames's  articles  on  Disseizin  of  Chattels,  in  the  Harvard  Law 
Review,  Jan.  —  March,  1S90. 


THE   EVOLUTION   OF  COPYRIGHT.  33 1 

of  the  fruit  of  his  labors  ;  and  the  earliest  legal 
recognition  of  his  rights  was  granted  less  than  a 
score  of  years  after  the  invention  of  printing  had 
made  the  injury  possible.  It  is  pleasant  for  us 
Americans  to  know  that  this  first  feeble  acknowledg- 
ment of  copyright  was  made  by  a  republic.  The 
Senate  of  Venice  issued  an  order,  in  1469,  that  John 
of  Spira  should  have  the  exclusive  right  for  five 
years  to  print  the  epistles  of  Cicero  and  of  Pliny.1 

This  privilege  was  plainly  an  exceptional  exercise 
of  the  power  of  the  sovereign  state  to  protect  the 
exceptional  merit  of  a  worthy  citizen  ;  it  gave  but 
a  limited  protection ;  it  guarded  but  two  books,  for 
a  brief  period  only,  and  only  within  the  narrow 
limits  of  one  commonwealth.  But,  at  least,  it 
established  a  precedent — a  precedent  which  has 
broadened  down  the  centuries  until  now,  four  hun- 
dred years  later,  any  book  published  in  Venice  is, 
by  international  conventions,  protected  from  pillage 
for  a  period  of  at  least  fifty  years,  through  a  terri- 
tory which  includes  almost  every  important  country 
of  continental  Europe.  If  John  of  Spira  were  to 
issue  to-day  his  edition  of  Tully's  Letters,  he  need 
not  fear  an  unauthorized  reprint  anywhere  in  the 
kingdom  of  which  Venice  now  forms  a  part,  or  in 
his  native  land,  Germany,  or  in  France,  Belgium,  or 
Spain,  or  even  in  Tunis,  Liberia,  or  Hayti. 

The  habit  of  asking  for  a  special  privilege  from 
the  authorities  of  the  State  wherein  the  book  was 
printed  spread  rapidly.  In  1491  Venice  gave  the  pub- 

1  Sanuto,  Script.  Rerum.  Italic,  t  xxii.,  p.  1189;  cited  by  Hallarn, 
History  of  Middle  Ages,  chap.  ix. ,  part  ii. 


332  THE   QUESTION   OF   COPYRIGHT. 

licist,  Peter  of  Ravenna,  and  the  publisher  of  his 
choice  the  exclusive  right  to  print  and  sell  his  PJice?iixx 
— the  first  recorded  instance  of  a  copyright  awarded 
directly  to  an  author.  Other  Italian  states  "  en- 
couraged printing  by  granting  to  different  printers 
exclusive  rights  for  fourteen  years,  more  or  less, 
of  printing  specified  classics,"  and  thus  the  time 
of  the  protection  accorded  to  John  of  Spira  was 
doubled.  In  Germany  the  first  privilege  was  issued 
at  Nuremberg,  in  1501.  In  France  the  privilege 
covered  but  one  edition  of  a  book  ;  and  if  the  work 
went  to  press  again,  the  publisher  had  to  seek  a 
second  patent. 

In  England,  in  15 18,  Richard  Pynson,  the  King's 
Printer,  issued  the  first  book  cum  privilegio ;  the 
title-page  declaring  that  no  one  else  should  print  or 
import  in  England  any  other  copies  for  two  years ; 
and  in  1530  a  privilege  for  seven  years  was  granted 
to  John  Palsgrave  "  in  the  consideration  of  the  value 
of  his  work  and  the  time  spent  on  it ;  this  being  the 
first  recognition  of  the  nature  of  copyright  as  fur- 
nishing a  reward  to  the  author  for  his  labor."2  In 
1 533  Wynkyn  de  Worde  obtained  the  king's  privi- 
lege for  his  second  edition  of  Witinton's  Grammar. 
The  first  edition  of  this  book  had  been  issued  ten 
years  before,  and  during  the  decade  it  had  been  re- 
printed by  Peter  Trevers  without  leave — a  despoil- 
ment against  which  Wynkyn  de  Worde  protested 
vigorously  in  the  preface  to  the  later  edition,  and 
on  account  of  which  he  applied  for  and  secured  pro- 

1  Bowker,  Copyright,  p.  5. 

3  T.  E.  Scrutton,  Laws  of  Copyright,  p.  72. 


THE   EVOLUTION  OF  COPYRIGHT.  333 

tection.  Here  again  is  evidence  that  a  man  does 
not  think  of  his  rights  until  he  feels  a  wrong.  Jhe- 
ring  bases  the  struggle  for  law  on  the  instinct  of 
ownership  as  something  personal,  and  the  feeling 
that  the  person  is  attacked  whenever  a  man  is  de- 
prived of  his  property  ;  and,  as  Walter  Savage 
Landor  wrote  :  "  No  property  is  so  entirely  and 
purely  and  religiously  a  man's  own  as  what  comes 
to  him  immediately  from  God,  without  intervention 
or  participation."  The  development  of  copyright, 
and  especially  its  rapid  growth  within  the  past  cent- 
ury, is  due  to  the  loud  protests  of  authors  deprived 
of  the  results  of  their  labors,  and  therefore  smarting 
as  acutely  as  under  a  personal  insult.' 

The  invention  of  printing  was  almost  simultaneous 
with  the  Reformation,  with  the  discovery  of  Amer- 
ica, and  with  the  first  voyage  around  the  Cape  of 
Good  Hope.  There  was  in  those  days  a  ferment 
throughout  Europe,  and  men's  minds  were  making 
ready  for  a  great  outbreak.  Of  this  movement,  in- 
tellectual on  one  side  and  religious  on  the  other,  the 
governments  of  the  time  were  afraid  ;  they  saw  that 
the  press  was  spreading  broadcast  new  ideas  which 
might  take  root  in  the  most  inconvenient  places, 
and  spring  up  at  the  most  inopportune  moments ; 
so  they  sought  at  once  to  control  the  printing  of 
books.  In  less  than  a  century  after  Gutenberg  had 
cast  the  first  type,  the  privileges  granted  for  the 
encouragement  and  reward  of  the  printer-publisher 
and  of  the  author  were  utilized  to  enable  those  in 
authority  to  prevent  the  sending  forth  of  such  works 

1  Jhering,  The  Struggle  for  Law  (translated  by  J.  J.  Lalor). 


334  THE   QUESTION   OF   COPYRIGHT. 

as  they  might  choose  to  consider  treasonable  or 
heretical.  P'or  a  while,  therefore,  the  history  of  the 
development  of  copyright  is  inextricably  mixed  with 
the  story  of  press-censorship.  In  France,  for  ex- 
ample, the  edict  of  Moulins,  in  1566,  forbade  "any 
person  whatsoever  printing  or  causing  to  be  printed 
any  book  or  treatise  without  leave  and  permission 
of  the  king,  and  letters  of  privilege."  1  Of  course, 
no  privilege  was  granted  to  publisher  or  to  author  if 
the  royal  censors  did  not  approve  of  the  book. 

In  England  the  "  declared  purpose  of  the  Sta- 
tioners' Company,  chartered  by  Philip  and  Mary  in 
1556,  was  to  prevent  the  propagation  of  the  Pro- 
testant Reformation." 2  The  famous  "  Decree  of 
Star  Chamber  concerning  printing,"  issued  in  1637, 
set  forth, 

"that  no  person  or  persons  whatsoever  shall  at  anytime  print  or 
cause  to  be  imprinted  any  book  or  pamphlet  whatsoever,  unless  the 
same  book  or  pamphlet,  and  also  all  and  every  the  titles,  epistles, 
prefaces,  proems,  preambles,  introductions,  tables,  dedications,  and 
other  matters  and  things  whatsoever  thereunto  annexed,  or  therewith 
imprinted,  shall  be  first  lawfully  licensed." 

In  his  learned  introduction  to  the  beautiful  edition 
of  this  decree,  made  by  him  for  the  Grolier  Club, 
Mr.  De  Vinne  remarks  that  at  this  time  the  people 
of  England  were  boiling  with  discontent ;  and,  "  an- 
noyed by  a  little  hissing  of  steam,"  the  ministers  of 
Charles  I.  "  closed  all  the  valves  and  outlets,  but  did 
not  draw  or  deaden  the  fires  which  made  the  steam  ;  " 

1  Alcide  Darras,  Du  Droit  des  Auteurs,  p.  169. 

2  E.  S.  Drone,  A   Treatise  on  the  Law  of  Property  in  Intellectual 
Productions,  p.  56. 


THE   EVOLUTION   OF    COPYRIGHT.  335 

then  "  they  sat  down  in  peace,  gratified  with  their 
work,  just  before  the  explosion  which  destroyed 
them."  This  decree  was  made  the  eleventh  day  of 
July,  1637;  and  in  1641  the  Star  Chamber  was 
abolished ;  and  eight  years  later  the  king  was 
beheaded  at  Whitehall. 

The  slow  growth  of  a  protection,  which  was  in  the 
beginning  only  a  privilege  granted  at  the  caprice  of 
the  officials,  into  a  legal  right,  to  be  obtained  by  the 
author  by  observing  the  simple  formalities  of  regis- 
tration and  deposit,  is  shown  in  a  table  given  in  the 
appendix  (page  370)  to  the  Report  of  the  Copyright 
Commission  (London,  1878).  The  salient  dates  in 
this  table  are  these  : 

"  1637. — Star  Chamber  Decree  supporting  copyright. 

1643. — Ordinance    of    the    Commonwealth    concerning     licensing. 

Copyright  maintained,  but  subordinate  to  political  objects. 
1662. — 13  and  14  Car.  II.,  c.  33. — Licensing  Act  continued  by  suc- 
cessive Parliaments  ;  gives  copyright  coupled  with  license. 
1710. — 8   Anne,  c.  19. — First  Copyright  Act.     Copyright  to  be  for 

fourteen   years,  and    if   author   then   alive,  for   fourteen    years 

more.     Power  to  regulate  price. 
1814. — 54    Geo.    III.,   c.  156. — Copyright    to   be  for    twenty-eight 

years  absolutely,   and  further  for  the  life  of  the  author,  if  then 

living. 
1842. — 5  and  6  Vict.,   c.  45. — Copyright  to  be  for  the  life  of  the 

author  and  seven  years  longer,  or  for  forty-two  years,  whichever 

term  last  expires." 

From  Mr.  Bowker's  chapter  on  the  History  of 
Copyright  in  the  United  States,  it  is  easy  to  draw  up 
a  similar  table  showing  the  development  in  this 
country  : 

"  1793- — Connecticut,    in  January,    and  Massachusetts,   in  March, 
passed  acts  granting  copyrights  for  twenty-one  years.     In  May 


336  THE   QUESTION   OF   COPYRIGHT. 

Congress  recommended  the  States  to  pass  acts  granting  copy- 
right for  fourteen  years — seemingly  a  step  backward  from  the 
Connecticut  and  Massachusetts  statutes. 

1785  and  1786. — Copyright  Acts  passed  in  Virginia,  New  York,  and 
New  Jersey. 

17S6. — Adoption  of  the  Constitution  of  the  United  States,  authoriz- 
ing Congress  '  to  promote  the  progress  of  science  and  useful 
arts  by  securing  for  limited  times,  to  authors  and  inventors,  the 
exclusive  right  to  their  respective  writings  and  discoveries.' 

1790. — First  United  States  Copyright  Act.  Copyright  to  citizens  or 
residents  for  fourteen  years,  with  a  renewal  for  fourteen  years 
more  if  the  author  were  living  at  the  expiration  of  the  first 
term. 

1831. — Copyright  to  be  for  twenty-eight  years,  with  a  renewal  for 
fourteen  years  more,  if  the  author,  his  widow,  or  his  children  are 
living  at  the  expiration  of  the  first  term. 

1856. — Act  securing  to  dramatists  stage-right;  that  is,  the  sole  right 
to  license  the  performance  of  a  play. 

1873-4. — The  Copyright  Laws  were  included  in  the  Revised  Statutes 
(sections  4948  to  4971)." 

From  the  exhaustive  and  excellent  work  of  M. 
Lyon-Caen  and  M.  Paul  Delalain  on  Literary  and 
Artistic  Property^  we  see  that  France,  now,  perhaps, 
the  foremost  of  all  nations  in  the  protection  it  ac- 
cords to  literary  property,  lagged  behind  Great 
Britain  and  the  United  States  in  taking  the  second 
step  in  the  evolution  of  copyright.  It  was  in  1710 
that  the  act  of  Anne  gave  the  British  author  a  legal 
right  independent  of  the  caprice  of  any  official ;  and 
as  soon  as  the  United  States  came  into  being,  the 
same  right  was  promptly  confirmed  to  our  citizens; 
but  it  was  not  until  the  fall  of  the  ancient  regime 
that  a  Frenchman  was  enabled  to  take  out  a  copy- 

1  La  ProprUte  Litter  aire  et  A  rtistique  :  Lois  Francaises  et  J^trangeres 
(Paris,  Pichon,  1889,  2  vols.). 


THE   EVOLUTION   OF  COPYRIGHT.  337 

right  at  will.  Up  to  the  eve  of  the  Revolution  of 
1789,  French  authors  could  do  no  more,  say  MM. 
Lyon-Caen  and  Delalain,  "  than  ask  for  a  privilege 
which  might  always  be  refused  them  "  (page  8).  As 
was  becoming  in  a  country  where  the  drama  has 
ever  been  the  most  important  department  of  lit- 
erature, the  first  step  taken  was  a  recognition  of 
the  stage-right  of  the  dramatist,  in  a  law  passed  in 
1 791.  Before  that,  a  printed  play  could  have  been 
acted  in  France  by  any  one,  but  thereafter  the  ex- 
clusive right  of  performance  was  reserved  to  the 
playwright  ;  and  at  one  bound  the  French  went  far 
beyond  the  limit  of  time  for  which  any  copyright 
was  then  granted  either  in  England  or  America, 
as  the  duration  of  stage-right  was  to  be  for  the 
author's  life  and  for  five  years  more.  It  is  to  be 
noted,  also,  that  stage-right  was  not  acquired  by 
British  and  American  authors  for  many  years  after 
1791. 

Two  years  after  the  French  law  protecting  stage- 
right,  in  the  dark  and  bloody  year  of  1793,  an  act 
was  passed  in  France  granting  copyright  for  the 
life  of  the  author  and  for  ten  years  after  his  death. 
It  is  worthy  of  remark  that,  as  soon  as  the  privi- 
leges and  monopolies  of  the  monarchy  were  abol- 
ished, the  strong  respect  the  French  people  have 
always  felt  for  literature  and  art  was  shown  by  the 
extension  of  the  term  of  copyright  far  beyond  that 
then  accorded  in  Great  Britain  and  the  United 
States ;  and  although  both  the  British  and  the 
American  term  of   copyright   has  been   prolonged 

since   1793,  so  also  has  the  French,  and  it  is    now 
22 


338  THE   QUESTION   OF   COPYRIGHT. 

for  life  of  the  author  and  for  fifty  years  after  his 
death. 

The  rapid  development  of  law  within  the  past 
century  and  the  effort  it  makes  to  keep  pace  with 
the  moral  sense  of  society — a  sense  that  becomes 
finer  as  society  becomes  more  complicated  and  as 
the  perception  of  personal  wrong  is  sharpened — can 
be  seen  in  this  brief  summary  of  copyright  develop- 
ment in  France,  where,  but  a  hundred  years  ago,  an 
author  had  only  the  power  of  asking  for  a  privilege 
which  might  be  refused  him.  The  other  countries 
of  Europe,  following  the  lead  of  France  as  they 
have  been  wont  to  do,  have  formulated  copyright 
laws  not  unlike  hers.  In  prolonging  the  duration 
of  the  term  of  copyright,  one  country  has  been  even 
more  liberal.  Spain  extends  it  for  eighty  years 
after  the  author's  death.  Hungary,  Belgium,  and 
Russia  accept  the  French  term  of  the  author's  life 
and  half  a  century  more.  Germany,  Austria,  and 
Switzerland  grant  only  thirty  years  after  the  author 
dies.  Italy  gives  the  author  copyright  for  his  life, 
with  exclusive  control  to  his  heirs  for  forty  years 
after  his  death ;  after  that  period  the  exclusive 
rights  cease,  but  a  royalty  of  five  per  cent,  on  the 
retail  price  of  every  copy  of  every  edition,  by 
whomsoever  issued,  must  be  paid  to  the  author's 
heirs  for  a  further  term  of  forty  years:  thus  a 
quasi-copyright  is  granted  for  a  period  extending 
to  eighty  years  after  the  author's  death,  and  the 
Italian  term  is  approximated  to  the  Spanish.  Cer- 
tain of  the  Spanish-American  nations  have  exceeded 
the  liberality  of  the  mother-country  :  in  Mexico,  in 


THE   EVOLUTION   OF   COPYRIGHT.  339 

Guatemala,  and  in  Venezuela  the  author's  rights  are 
not  terminated  by  the  lapse  of  time,  and  copyright 
is  perpetual.1 

To  set  down  with  precision  what  has  been  done 
in  various  countries  will  help  us  to  see  more  clearly 
what  remains  to  be  done  in  our  own.  It  is  only  by 
considering  the  trend  of  legal  development  that  we 
can  make  sure  of  the  direction  in  which  efforts  to- 
ward improvement  can  be  guided  most  effectively. 
For  example :  the  facts  contained  in  the  preceding 
paragraphs  show  that  no  one  of  the  great  nations  of 
continental  Europe  grants  copyright  for  a  less  term 
than  the  life  of  the  author  and  a  subsequent  period 
varying  from  thirty  to  eighty  years.  A  comparison 
also  of  the  laws  of  the  various  countries,  as  con- 
tained in  the  invaluable  volumes  of  MM.  Lyon- 
Caen  and  Delalain,  reveals  to  us  the  fact  that  there 
is  a  steady  tendency  to  lengthen  this  term  of  years, 
and  that  the  more  recent  the  legislation  the  more 
likely  is  the  term  to  be  long.  In  Austria,  for  in- 
stance, where  the  term  was  fixed  in  1846,  it  is  for 
thirty  years  after  the  author's  death ;  while  in  the 
twin-kingdom  of  Hungary,  where  the  term  was  fixed 
in  1884,  it  is  for  fifty  years. 

On  a  contrast  of  the  terms  of  copyright  granted 
by  the  chief  nations  of  continental  Europe  with 
those   granted   by  Great    Britain    and   the    United 

1  Here  again  it  may  be  noted  that  certain  decisions  in  the  United 
States  courts,  to  the  effect  that  the  performance  of  a  play  is  not  pub- 
lication, and  that  therefore  an  unpublished  play  is  protected  by  the 
common  law  and  not  by  the  copyright  acts,  recognize  the  perpetual 
stage-right  of  any  dramatist  who  will  forego  the  doubtful  profit  of 
appearing  in  print. 


340  THE   QUESTION   OF   COPYRIGHT. 

States,  it  will  be  seen  that  the  English-speaking 
race,  which  was  first  to  make  the  change  from  priv- 
ilege to  copyright,  and  was  thus  the  foremost  in 
the  protection  of  the  author,  now  lags  sadly  behind. 
The  British  law  declares  that  the  term  of  copyright 
shall  be  for  the  life  of  the  author  and  only  seven 
years  thereafter,  or  for  forty-two  years,  whichever 
term  last  expires.  The  American  law  does  not  even 
give  an  author  copyright  for  the  whole  of  his  life, 
if  he  should  be  so  unlucky  as  to  survive  forty-two 
years  after  the  publication  of  his  earlier  books  ;  it 
grants  copyright  for  twenty-eight  years  only,  with  a 
permission  to  the  author  himself,  his  widow,  or  his 
children  to  renew  for  fourteen  years  more.  This  is 
niggardly  when  set  beside  the  liberality  of  France, 
to  say  nothing  of  that  of  Italy  and  Spain.  Those 
who  are  unwilling  to  concede  that  the  ethical  devel- 
opment of  France,  Italy,  and  Spain  is  more  advanced 
than  that  of  Great  Britain  and  the  United  States,  at 
least  as  far  as  literary  property  is  concerned,  may 
find  some  comfort  in  recalling  the  fact  that  the 
British  act  was  passed  in  1842  and  the  American  in 
1 83 1 — and  in  threescore  years  the  world  moves. 

There  is  no  need  to  dwell  on  the  disadvantages  of 
the  existing  American  law,  and  on  the  injustice 
which  it  works.  It  may  take  from  an  author  the 
control  of  his  book  at  the  very  moment  when  he  is 
at  the  height  of  his  fame  and  when  the  infirmities  of 
age  make  the  revenue  from  his  copyrights  most  nec- 
essary. An  example  or  two  from  contemporary 
American  literature  will  serve  to  show  the  demerits 
of   the  existing  law.     The  first  part  of  Bancroft's 


THE  EVOLUTION   OF   COPYRIGHT.  341 

History  of  the  United  States,  the  history  of  the 
colonization,  was  published  in  three  successive  vol- 
umes in  1834,  1837,  and  1840;  and  although  the  au- 
thor, before  his  death,  revised  and  amended  this 
part  of  his  work,  it  has  been  lawful,  since  1882,  for 
any  man  to  take  the  unrevised  and  incorrect  first 
edition  and  to  reprint  it,  despite  the  protests  of  the 
author,  and  in  competition  with  the  improved  ver- 
sion which  contains  the  results  of  the  author's 
increased  knowledge  and  keener  taste. 

At  this  time  of  writing  (1890)  all  books  published 
in  the  United  States  prior  to  1848  are  open  to 
any  reprinter ;  and  the  reprinter  has  not  been  slow 
to  avail  himself  of  this  permission.  The  children 
of  Fenimore  Cooper  are  alive,  and  so  are  the 
nieces  of  Washington  Irving ;  but  they  derive  no 
income  from  the  rival  reprints  of  the  LeatJierstocking 
Tales  or  of  the  Sketch  Book,  reproduced  from  the 
earliest  editions  without  any  of  the  authors'  later 
emendations.1  Though  the  family  of  Cooper  and 
the  family  of  Irving  survive,  Cooper  and  Irving  are 
dead  themselves,  and  cannot  protest.  But  there 
are  living  American  authors  besides  Bancroft  who 
are  despoiled  in  like  manner.  Half  a  dozen  vol- 
umes were  published  by  Mr.  Whittier  and  by  Dr. 
Holmes  before  1848,  and  these  early,  immature, 
uncorrected  verses  are  now  reprinted  and  offered 
to  the  public  as  "  Whittier  s  Poems"  and  "Holmes's 
Poems."  Sometimes  the  tree  of  poesy  flowers  early 
and  bears   fruit  late.     So  it  is  with  Lowell,  whose 

1  The  emendations,  having  been  made  within  forty-two  years,  are, 
of  course,  still  guarded  by  copyright. 


342  THE   QUESTION   OF  COPYRIGHT. 

Heartsease  and  Rue  we  received  with  delight  only  a 
year  or  two  ago,  but  whose  Legend  of  Brittany,  Vision 
of  Sir  Lanufal,  Fable  for  Critics  and  first  series  of 
Biglow  Papers  were  all  published  forty-two  years 
ago  or  more,  and  are  therefore  no  longer  the  prop- 
erty of  their  author,  but  have  passed  from  his  con- 
trol absolutely  and  forever. 

Besides  the  broadening  of  a  capricious  privilege 
into  a  legal  right,  and  besides  the  lengthening  of 
the  time  during  which  this  right  is  enforced,  a 
steady  progress  of  the  idea  that  the  literary  laborer 
is  worthy  of  his  hire  is  to  be  seen  in  various  newer 
and  subsidiary  developments.  With  the  evolution 
of  copyright,  the  author  can  now  reserve  certain 
secondary  rights  of  abridgment,  of  adaptation,  and 
of  translation.  In  all  the  leading  countries  of  the 
world  the  dramatist  can  now  secure  stage-right,1 
i.e.,  the  sole  right  to  authorize  the  performance 
of  a  play  on  a  stage.  Copyright  and  stage-right 
are  wholly  different ;  and  a  dramatist  is  entitled  to 
both.  The  author  of  a  play  has  made  something 
which  may  be  capable  of  a  double  use,  and  it  seems 
proper  that  he  should  derive  profit  from  both  uses. 
His  play  may  be  read  only  and  not  acted,  like 
Lord  Tennyson's  Harold  and  Longfellow's  Spanish 
Student,  in  which  case  the  copyright  is  more  valu- 
able than  the  stage-right.  Or  the  play  may  be  acted 
only,  like  the  imported  British  melodramas,  and  of 
so  slight  a  literary  merit  that  no   one  would  care 

1  Mr.  Drone  uses  the  word  "playright,"  but  this  is  identical  in 
sound  with  "playwright,"  and  it  seems  better  to  adopt  the  word 
"  stage-right,"  first  employed  by  Charles  Reade. 


THE   EVOLUTION   OF   COPYRIGHT.  343 

to  read  it,  in  which  case  the  stage-right  would  be 
more  valuable  than  the  copyright.  Or  the  drama 
may  be  both  readable  and  actable,  like  Shakespeare's 
and  Sheridan's  plays,  like  Augier's  and  Labiche's, 
in  which  case  the  author  derives  a  double  profit, 
controlling  the  publication  by  copyright  and  con- 
trolling performance  by  stage-right.  It  was  in  1791, 
as  we  have  seen,  that  France  granted  stage-right. 
In  England,  "  the  first  statute  giving  to  dramatists 
the  exclusive  right  of  performing  their  plays  was 
the  3  and  4  William  IV.,  c.  15,  passed  in  1833,"  says 
Mr.  Drone  (page  601).  In  the  United  States,  stage- 
right  was  granted  in  185 1  to  dramatists  who  had 
copyrighted  their  plays  here. 

Closely  akin  to  the  stage-right  accorded  to  the 
dramatist  is  the  sole  right  of  dramatization  accorded 
to  the  novelist.  Indeed,  the  latter  is  an  obvious 
outgrowth  of  the  former.  Until  the  enormous  in- 
crease of  the  reading  public  in  this  century,  conse- 
quent upon  the  spread  of  education,  the  novel  was 
an  inferior  form  to  the  drama  and  far  less  profitable 
pecuniarily.  It  is  only  within  the  past  hundred 
years — one  might  say,  fairly  enough,  that  it  is  only 
since  the  Waverley  novels  took  the  world  by  storm — 
that  the  romance  has  claimed  equality  with  the  play. 
Until  it  did  so,  no  novelist  felt  wronged  when  his 
tale  was  turned  to  account  on  the  stage,  and  no 
novelist  ever  thought  of  claiming  a  sole  right  to  the 
theatrical  use  of  his  own  story.  Lodge,  the  author 
of  Rosalynde,  would  have  been  greatly  surprised  if 
any  one  had  told  him  that  Shakespeare  had  made  an 
improper  use  of  his  story  in  founding  on  it  As  You 


344  THE  QUESTION  OF  COPYRIGHT. 

Like  It.  On  the  contrary,  in  fact,  literary  history 
would  furnish  many  an  instance  to  prove  that  the 
writer  of  fiction  felt  that  a  pleasant  compliment  had 
been  paid  him  when  his  material  was  made  over  by 
a  writer  for  the  stage.  Scott,  for  example,  aided 
Terry  in  adapting  his  novels  for  theatrical  perform- 
ance ;  and  he  did  this  without  any  thought  of  re- 
ward. But  by  the  time  that  Dickens  succeeded 
Scott  as  the  most  popular  of  English  novelists  the 
sentiment  was  changing.  In  Nicholas  Nickleby  the 
author  protested  with  acerbity  against  the  hack 
playwrights  who  made  haste  to  put  a  story  on  the 
stage  even  before  its  serial  publication  was  finished. 
His  sense  of  injury  was  sharpened  by  the  clumsy 
disfiguring  of  his  work.  Perhaps  the  injustice  was 
never  so  apparent  as  when  a  British  playwright,  one 
Fitzball,  captured  Fenimore  Cooper's  Pilot  in  1826 
and  turned  Long  Tom  Coffin  into  a  British  sailor ! 
— an  act  of  piracy  which  a  recent  historian  of  the 
London  theatres,  Mr.  H.  B.  Baker,  records  with 
hearty  approval.  The  possibility  of  an  outrage  like 
this  still  exists  in  England.  In  France,  of  course, 
the  novelist  has  long  had  the  exclusive  right  to 
adapt  his  own  story  to  the  stage  ;  and  in  the  United 
States,  also,  he  has  it,  if  he  gives  notice  formally 
on  every  copy  of  the  book  itself  that  he  desires  to 
reserve  to  himself  the  right  of  dramatization.  But 
England  has  not  as  yet  advanced  thus  far ;  and  no 
English  author  can  make  sure  that  he  may  not  see 
a  play  ill-made  out  of  his  disfigured  novel.  Charles 
Reade  protested  in  vain  against  unauthorized  dram- 
atization of  his  novels,   and  then,  with   character- 


THE   EVOLUTION   OF  COPYRIGHT.  345 

istic  inconsistency,  made  plays  out  of  novels  by 
Anthony  Trollope  and  Mrs.  Hodgson  Burnett  with- 
out asking  their  consent.  But  the  unauthorized 
British  adapter  may  not  lawfully  print  the  play  he 
has  compounded  from  a  copyright  novel,  as  any 
multiplication  of  copies  would  be  an  infringement 
of  the  copyright  ;  and  Mrs.  Hodgson  Burnett  suc- 
ceeded in  getting  an  injunction  against  an  unauthor- 
ized dramatization  of  Little  Lord  Fauntleroy  on  proof 
that  more  than  one  copy  of  the  unauthorized  play 
had  been  made  for  use  in  the  theatre.  It  is  likely 
that  one  of  the  forthcoming  modifications  of  the 
British  law  will  be  the  extension  to  the  novelist  of 
the  sole  right  to  dramatize  his  own  novel. 

II. 

From  a  consideration  of  the  lengthening  of  the 
term  of  copyright  and  the  development  of  certain 
subsidiary  rights  now  acquired  by  an  author,  we 
come  to  a  consideration  of  the  next  step  in  the 
process  of  evolution.  This  is  the  extension  of  an 
author's  rights  beyond  the  boundaries  of  the  country 
of  which  he  is  a  citizen,  so  that  a  book  formally 
registered  in  one  country  shall  by  that  single  act 
and  without  further  formality  be  protected  from 
piracy x  throughout  the  world.  This  great  and 
needful  improvement   is  now   in  course  of  accom- 

1  "Piracy"  is  a  term  available  for  popular  appeal  but  perhaps 
lacking  in  scientific  precision.  The  present  writer  used  it  in  a  little 
pamphlet  on  American  Authors  and  British  Pirates  rather  by  way  of 
retort  to  English  taunts.  Yet  the  inexact  use  of  the  word  indicates 
the  tendency  of  public  opinion. 


346  THE   QUESTION   OF   COPYRIGHT. 

plishment ;    it  is  still  far  from  complete,  but  year 
by  year  it  advances  farther  and  farther. 

In  the  beginning  the  sovereign  who  granted  a 
privilege,  or  at  his  caprice  withheld  it,  could  not, 
however  strong  his  good-will,  protect  his  subject's 
book  beyond  the  borders  of  his  realm  ;  and  even 
when  privilege  broadened  into  copyright,  a  book 
duly  registered  was  protected  only  within  the  State 
wherein  the  certificate  was  taken  out.  Very  soon 
after  Venice  accorded  the  first  privilege  to  John  of 
Spira,  the  extension  of  the  protection  to  the  limits 
of  a  single  State  only  was  found  to  be  a  great  dis- 
advantage. Printing  was  invented  when  central  Eu- 
rope was  divided  and  subdivided  into  countless  lit- 
tle states  almost  independent,  but  nominally  bound 
together  in  the  Holy  Roman  Empire.  What  is 
now  the  kingdom  of  Italy  was  cut  up  into  more  than 
a  score  of  separate  states,  each  with  its  own  laws 
and  its  own  executive.  What  is  now  the  German  Em- 
pire was  then  a  disconnected  medley  of  electorates, 
margravates,  duchies,  and  grand-duchies,  bishoprics 
and  principalities,  free  towns  and  knight-fees,  with 
no  centre,  no  head,  and  no  unity  of  thought  or  of 
feeling  or  of  action.  The  printer-publisher  made  an 
obvious  effort  for  wider  protection  when  he  begged 
and  obtained  a  privilege  not  only  from  the  authori- 
ties of  the  State  in  which  he  was  working  but  also 
from  other  sovereigns.  Thus,  when  the  Florentine 
edition  of  the  Pandects  was  issued  in  1553,  the  pub- 
lisher secured  privileges  in  Florence  first,  and  also 
in  Spain,  in  the  Two  Sicilies,  and  in  France.  But 
privileges  of  this  sort  granted  to  non-residents  were 


THE  EVOLUTION   OF  COPYRIGHT.  347 

very  infrequent,  and  no  really  efficacious  protection 
for  the  books  printed  in  another  State  was  practically 
attainable  in  this  way.  Such  protection,  indeed,  was 
wholly  contrary  to  the  spirit  of  the  times,  which 
held  that  an  alien  had  no  rights.  In  France,  for 
example,  a  ship  wrecked  on  the  coasts  was  seized  by 
the  feudal  lord  and  retained  as  his,  subject  only  to 
the  salvage  claim.1  In  England  a  wreck  belonged 
to  the  king  unless  a  living  being  (man,  dog,  or  cat) 
escaped  alive  from  it  ;  and  this  claim  of  the  crown 
to  all  the  property  of  the  unfortunate  foreign  owner 
of  the  lost  ship  was  raised  as  late  as  1771,  when  Lord 
Mansfield  decided  against  it.  When  aliens  were 
thus  rudely  robbed  of  their  tangible  possessions, 
without  public  protest,  there  was  not  likely  to  be 
felt  any  keen  sense  of  wrong  at  the  appropriation 
of  a  possession  so  intangible  as  copyright. 

What  was  needed  was,  first  of  all,  an  amelioration 
of  the  feeling  toward  aliens  as  such  ;  and  second, 
such  a  federation  of  the  petty  states  as  would  make  a 
single  copyright  effective  throughout  a  nation,  and  as 
would  also  make  possible  an  international  agreement 
for  the  reciprocal  protection  of  literary  property. 
Only  within  the  past  hundred  years  or  so,  has  this 
consolidation  into  compact  and  homogeneous  nation- 
alities taken  place.  In  the  last  century,  for  example, 
Ireland  had  its  own  laws,  and  Irish  pirates  reprinted 
at  will  books  covered  by  English  copyright.  In  the 
preface  to  Sir  Charles  Grandison,  published  in  1753, 
Richardson,  novelist  and  printer,  inveighed  against 

1  A.  C.  Bernheim,  History  of  the  Law  of  Aliens  (N.  Y.,  1885), 
p.   58. 


343  THE   QUESTION   OF   COPYRIGHT. 

the  piratical  customs  of  the  Hibernian  publishers.  In 
Italy,  what  was  published  in  Rome  had  no  protection 
in  Naples  or  Florence.  In  Germany,  where  Luther 
in  his  day  had  protested  in  vain  against  the  reprint- 
ers,  Goethe  and  Schiller  were  able  to  make  but 
little  money  from  their  writings,  as  these  were  con- 
stantly pirated  in  the  other  German  states,  and  even 
imported  into  that  in  which  they  were  protected,  to 
compete  with  the  author's  edition.  In  1826,  Goethe 
announced  a  complete  edition  of  his  works,  and,  as 
a  special  honor  to  the  poet  in  his  old  age,  "  the 
Bundestag  undertook  to  secure  him  from  piracy  in 
German  cities." *  With  the  union  of  Ireland  and 
Great  Britain,  with  the  accretion  about  the  kingdom 
of  Sardinia  of  the  other  provinces  of  Italy,  with 
the  compacting  of  Germany  under  the  hegemony 
of  Prussia,  this  inter-provincial  piracy  has  wholly 
disappeared  within  the  limits  of  these  national 
states. 

The  suppression  of  international  piracy  passes 
through  three  phases.  First,  the  nation  whose 
citizens  are  most  often  despoiled — and  this  nation 
has  nearly  always  been  France — endeavors  to  nego- 
tiate reciprocity  treaties,  by  which  the  writers  of 
each  of  the  contracting  countries  may  be  enabled  to 
take  out  copyrights  in  the  other.  Thus  France  had, 
prior  to  1852,  special  treaties  with  Holland,  Sardinia, 
Portugal,  Hanover,  and  Great  Britain.  Secondly,  a 
certain  number  of  nations  join  in  an  international 
convention,  extending  to  the  citizens  of  all  the 
copyright    advantages   that    the    citizens    of    each 

1  G.  H.  Lewes,  Life  and  Works  of  Goethe,  p.  545. 


THE   EVOLUTION   OF   COPYRIGHT.  349 

enjoy  at  home.  Third,  a  State  modifies  its  own 
local  copyright  law  so  as  to  remove  the  disability  of 
the  alien.  This  last  step  was  taken  by  France  in 
1852;  and  in  1886  Belgium  followed  her  example. 

The  French,  seeking  equity,  are  willing  to  do 
equity ;  they  ask  no  questions  as  to  the  nationality 
or  residence  of  an  author  who  offers  a  book  for 
copyright ;  and  they  do  not  demand  reciprocity  as 
a  condition  precedent.  Time  was  when  the  chief 
complaint  of  French  authors  was  against  the  Bel- 
gian reprinters  ;  but  the  Belgians,  believing  that  the 
ship  of  state  was  ill-manned  when  she  carried  pirates 
in  her  crew,  first  made  a  treaty  with  France  and 
then  modified  their  local  law  into  conformity  with 
the  French.  These  two  nations,  one  of  which  was 
long  the  headquarters  of  piracy,  now  stand  forward 
most  honorably  as  the  only  two  which  really  protect 
the  full  rights  of  an  author. 

Most  of  the  states  which  had  special  copyright 
treaties  one  with  another  have  adhered  to  the  con- 
vention of  Berne,  finally  ratified  in  1887.  Among 
them  are  France,  Belgium,  Germany,  Spain,  Italy, 
Great  Britain,  and  Switzerland.  The  adhesion  of 
Austro-Hungary,  Holland,  Norway,  and  Sweden  is 
likely  not  long  to  be  delayed.  The  result  of  this 
convention  is  substantially  to  abolish  the  distinction 
between  the  subjects  of  the  adhering  powers  and  to 
give  to  the  authors  of  each  country  the  same  faculty 
of  copyright  and  of  stage-right  that  they  enjoy  at 
home,  without  any  annoying  and  expensive  formali- 
ties of  registration  or  deposit  in  the  foreign  State. 

The   United  States  of  America  is  now  the  only 


350  THE   QUESTION   OF  COPYRIGHT. 

one  of  the  great  powers  of  the  world  which  abso- 
lutely refuses  the  protection  of  its  laws  to  the  books 
of  a  friendly  alien.1  From  having  been  one  of  the 
foremost  states  of  the  world  in  the  evolution  of 
copyright,  the  United  States  has  now  become  one 
of  the  most  backward.  Nothing  could  be  more 
striking  than  a  contrast  of  the  liberality  with  which 
the  American  law  treats  the  foreign  inventor  and 
the  niggardliness  with  which  it  treats  the  foreign 
author.  In  his  Popular  Government  (page  247)  the 
late  Sir  Henry  Sumner  Maine  declared  that  "  the 
power  to  grant  patents  by  federal  authority  has 
.  .  made  the  American  people  the  first  in  the 
world  for  the  number  and  ingenuity  of  the  inven- 
tions by  which  it  has  promoted  the  '  useful  arts ; ' 
while,  on  the  other  hand,  the  neglect  to  exercise  this 
power  for  the  advantage  of  foreign  writers  has  con- 
demned the  whole  American  community  to  a  liter- 
ary servitude  unparalleled  in  the  history  of  thought." 

1  If  a  foreign  dramatist  chooses  to  keep  his  play  in  manuscript, 
then  the  American  courts  will  defend  his  stage-right  ;  but  the  for- 
eign dramatist  is  the  only  alien  author  whose  literary  property  is 
assured  to  him  by  our  courts. 

November,  1890. 


XXI. 
LITERARY   PROPERTY. 

AN    HISTORICAL    SKETCH. 

By  Geo.  Haven  Putnam. 

(Originally  published  in  1884,  in  Mason  and  Lalor's  Cyclopcedia  of 
Political  Science. ) 

During  the  past  twenty  years  there  has  been  a 
very  considerable  increase  in  the  extent  of  interna- 
tional literary  exchanges,  and  a  fuller  recognition, 
at  least  in  Europe,  of  the  propriety  and  necessity  of 
bringing  these  under  the  control  of  international 
law.  Americans  also  are  beginning  to  appreciate 
how  largely  the  intellectual  development  of  their 
nation  must  be  affected  by  all  that  influences  the 
development  of  the  national  literature,  and  to  rec- 
ognize the  extent  to  which  such  development  must 
depend  upon  the  inducements  extended  to  literary 
producers,  as  well  as  upon  the  character  of  the  com- 
petition with  which  these  producers  have  to  contend. 

Literary  property  is  defined  by  Drone  as  "  the 
exclusive  right  of  the  owner  to  possess,  use,  and 
dispose  of  intellectual  productions,"  and  copyright 
as  "  the  exclusive  right  of  the  owner  to  multiply  and 
to  dispose  of  copies  of  an  intellectual  production." 

The  English  statute  (5  and  6  Vict.)  defines  copy- 


352  THE   QUESTION   OF   COPYRIGHT. 

right  to  mean  "the  sole  and  exclusive  liberty  of 
printing  or  otherwise  multiplying  copies  of  any 
subject  to  which  the  word  is  herein  applied." 

The  American  statute  (U.  S.  Rev.  Stat.,  §  4952) 
speaks  of  copyright  in  a  book  as  "  the  sole  liberty 
of  printing,  reprinting,  publishing,  .  .  .  and 
vending  the  same." 

The  French  Constitutional  Convention  adopted, 
in  January,  1791,  a  report  prepared  by  Chopelin, 
which  declares  that :  La  plus  sacrS,  la  plus  inatta- 
qaable,  et,  si  je  puis,  parler  aiusi,  la  plus  personelle  de 
toutes  les  proprietes,  est  Vouvrage,  fruit  de  la  pense'e 
d'un  ecrivain.  And  in  the  decree  rendered  by  the 
convention,  July  10,  1793,  the  preamble  (written  by 
Lakanal)  declares  that  de  toutes  les  proprieties,  la 
moins  susceptible  de  contestation,  cest,  sans  contre'dit, 
cclle  des  productions  du  ge'nie :  et  si  quelque  chose  peut 
e'tonner,  cest  qu'il  ait  fallu  reconnaitre  cette  propriety, 
assurer  son  libre  exercice  par  une  loi  positive ;  cest 
qiiune  aussi  grande  revolution  que  la  uotre  ait  etc 
necessaire poiir  nous  ramener  sur  ce  point,  comme  sur 
tout  d'autres,  aux  simples  elements  de  la  justice  la 
plus  commune. 

The  act  relating  to  copyright,  adopted  by  the 
Reichstag  of  Germany,  in  April,  1871,  declares  that 
Das  Recht,  ein  Schriftzverk  auf  mcchanischem  Wege 
zu  vervielfaltigen,  steht  dcm  Urheber  desselben  aus- 
schliesslich  zu. 

Copinger  defines  copyright  as  "  the  sole  and  ex- 
clusive right  of  multiplying  copies  of  an  original 
work  or  composition,"  and  says  that  the  right  of  an 
author  "  to  the  productions  of  his  mental  exertions 


LITERARY   PROPERTY.  353 

may  be  classed  among  the  species  of  property 
acquired  by  occupancy ;  being  founded  on  labor 
and  invention." 

Francis  Lieber  says  (in  an  address  delivered  April 
6, 1868) :  "  The  main  roots  of  all  property  whatsoever. 
are  appropriation  and  production.  .  .  .  Prop- 
erty .  .  .  precedes  government.  If  a  man  ap- 
propriates what  belongs  to  no  one  (for  instance,  the 
trunk  of  a  tree),  and  if  he  produces  a  new  thing  (for 
instance,  a  canoe)  out  of  that  tree,  this  product  is 
verily  his  own,  .  .  .  and  any  one  who  in  turn 
attempts  to  appropriate  it  without  the  process  of 
exchange,  is  an  intruder,  a  robber.  .  .  .  The 
whole  right  of  property  .  .  .  rests  on  appropri- 
ation and  production :  and  I  appeal  to  the  intuitive 
conviction  of  every  thinking  man  to  say  whether  a 
literary  work,  such  as  Baker's  description  of  his 
toilsome  journeys,  or  Goethe's  Faust,  is  not  a  pro- 
duction in  the  fullest  sense  of  the  word,  even  more 
so  than  a  barrel  of  herrings,  which  have  been  appro- 
priated in  the  North  Sea,  and  pickled  and  barreled 
by  the  fishermen  ;  and  whether  any  one  has  a  right 
to  meddle  with  this  property  by  production,  any 
more  than  you  or  I  with  the  barrel  of  herrings." 

Drone  says  :  "  There  can  be  no  property  in  a 
production  of  the  mind  unless  it  is  expressed  in  a 
definite  form  of  words.  But  the  property  is  not  in 
the  words  alone;  it  is  in  the  intellectual  creation, 
which  language  is  merely  a  means  of  expressing  and 
communicating."  It  is  evident  that  copyright  is  in 
its  nature  akin  to  patent  right,  which  also  represents 
the  legal  recognition  of  the  existence  of  property  in 


354  THE   QUESTION   OF  COPYRIGHT. 

an  idea  or  a  group  of  ideas,  or  the  form  of  expres- 
sion of  an  idea. 

International  patent  rights  have,  however,  been 
recognized  and  carried  into  effect  more  generally 
than  have  copyrights.  The  patentee  of  an  improved 
toothpick  would  be  able  to  secure  to-day  a  wider 
recognition  of  his  right  than  has  been  accorded 
to  the  author  of  Uncle  Toms  Cabin  or  of  Adam 
Bede. 

Almost  the  sole  exception  to  this  consensus  of 
civilized  opinion  on  the  status  of  literary  property 
is  presented  by  Henry  C.  Carey.  He  took  the  posi- 
tion that  "  Ideas  are  the  common  property  of  man- 
kind. Facts  are  everybody's  facts.  Words  are  free 
to  all  men.  .  .  .  Examine  Macaulay's  History 
of  England ',  and  you  will  find  that  the  body  is  com- 
posed of  what  is  common  property."  Of  Prescott, 
Bancroft,  and  Webster  he  says  :  "  They  did  nothing 
but  reproduce  ideas  that  were  common  property." 
Of  Scott  and  Irving,  "  They  made  no  contribution 
to  knowledge."  (Letters  on  Copyright,  Phila.,  1854.) 
Therefore,  the  author  of  a  work  has  no  right  of 
property  in  the  book  he  has  made.  He  took  the 
common  stock  and  worked  it  over;  and  one  man 
has  just  as  good  a  right  to  it  as  another.  If  the 
author  is  allowed  to  be  the  owner  of  his  works,  the 
public  are  deprived  of  their  rights.  Property  in 
books  is  robbery.  But  this  is  simply  a  partial  or 
specific  application  of  the  well-known  formula  of 
Proudhon :  "  Property  is  robbery,"  a  theory  which 
it  is  not  necessary  to  discuss  in  this  paper. 

The  conception  of  literary  property  was  known 


LITERARY   PROPERTY.  355 

to  the  ancients.  A  recompense  of  some  sort  to  the 
author  was  regarded  as  a  natural  right,  and  any 
one  contravening  it  as  little  better  than  a  robber. 
Klostermann  says:  "The  first  germs  of  a  recogni- 
tion of  a  property  in  thought  are  to  be  found  in  the 
agreements  which  authors  entered  into  with  the 
booksellers  for  the  multiplication  and  sale  of  copies 
of  their  works,  and  in  the  custom  to  treat  as  unlawful 
any  infringement  upon  the  bookseller's  right  in  a 
work  which  had  been  so  transferred  to  him.  The 
booksellers  among  the  Romans  succeeded,  through 
the  use  of  slave  labor,  in  producing  duplicates  of  their 
manuscripts  at  so  low  a  cost  that  the  use  and  pro- 
ductions, centuries  later,  of  the  first  printing  presses, 
were  hardly  cheaper."  Martial  records,  in  one  of 
his  epigrams,  that  the  edition  of  his  Xenii  could 
be  bought  from  the  bookseller  Tryphon  for  four 
sesterces,  the  equivalent  of  about  twelve  and  a  half 
cents.  He  grumbles  at  this  price  as  being  too  high, 
and  claims  that  the  bookseller  would  have  been  able 
to  get  a  profit  from  a  charge  of  half  that  amount. 
This  poet  appears  to  have  had  not  less  than  four 
publishers  in  charge  of  the  sale  of  his  works,  one  of 
whom  was  a  freedman  of  the  second  Lucensis.  The 
latter  issued  a  special  pocket  edition  of  the  Epigrams. 
The  poet  prepared  the  advertisements  for  the  book- 
sellers, putting  these  in  the  form  of  epigrams,  but 
not  neglecting  to  specify  the  form  and  price  of  each 
book,  as  well  as  the  place  where  it  was  offered  for 
sale.1     Horace  refers  to  the  brothers  Sosius  as  his 

'Omnis  in  hoc  gracili  xeniorum  turba  libello 
Constabit  nummis  quatuor  cmpta  tibi. 


356  THE   QUESTION  OF   COPYRIGHT. 

publishers,  but  complains  that  while  his  works 
brought  gold  to  them,  for  their  author  they  earned 
only  fame  in  distant  lands  and  with  posterity.1 
Terence  sold  his  EtinncJms  to  the  aediles,  and  his 
Hccyra  to  the  player  Roscius  ;  while  Juvenal  reports 
that  Statius  would  have  starved  if  he  had  not  suc- 
ceeded in  selling  to  the  actor  Paris  his  tragedy  of 
Agave.  "  Such  sales,"  says  Coppinger,  "  were  con- 
sidered as  founded  upon  natural  justice.  No  man 
could  possibly  have  a  right  to  make  a  profit  by  the 
sale  of  the  works  of  another  without  the  author's 
consent.  It  would  be  converting  to  his  own  emol- 
ument the  fruits  of  another's  labor." 

It  is  apparent  from  these  and  from  similar  refer- 
ences, that  under  the  Roman  Empire  authors  were  in 
the  habit  of  transferring  to  booksellers,  for  such  con- 
sideration as  they  could  obtain,  the  right  to  duplicate 
and  to  sell  their  works,  and  that,  under  the  trade 
usages,  they  were  protected  in  so   doing.      There 

Quatuor  est  nimium,  poterit  constare  duobus. 
Et  faciet  lucrum  bibliopola  Tryphon. 

(EpigrammatJ,  lib.  xiii.,ep.  3.) 

Qui  tecum  cupis  esse  meos  ubicunque  libellos. 
Et  comites  longse  quseris  habere  viae, 
Hos  eme  quos  arcet  brevibus  membrana  tabellis : 
Scrinia  da  magnis,  me  manus  una  capit. 
***** 

Libertum  docti  Lucensis  quare  secundi 
Limina  post  Pacis,  Palladiumque  Forum. 

Epigrammata,  lib.  i. ,  ep.  3.) 

'Hie  meret  sera  liber  Sosiis,  hie  et  mare  transit, 
Et  longum  noto  scriptori  prorogat  alvum. 

{Art.  Poet.,  345.) 


LITERARY    PROPERTY.  357 

was  no  imperial  act  covering  such  transfers,  and  it 
does  not  appear  that  in  any  division  of  the  Roman 
law  was  there  provision  for  the  exclusive  right  in 
the  "  copy  "  of  literary  material. 

It  is  nevertheless  the  case  that  the  Roman  jurists 
interested  themselves  in  the  question  of  immaterial 
property,  but  it  was  apparently  rather  as  a  theo- 
retical speculation  than  as  a  study  in  practical  law. 
Some  of  the  earlier  discussions  as  to  the  nature  of 
property  in  ideas  appear  to  have  turned  upon  the 
question  as  to  whether  such  property  should  take 
precedence  over  that  in  the  material  which  happened 
to  be  made  use  of  for  the  expression  of  the  ideas. 
The  disciples  of  Proculus  maintained  that  the  occu- 
pation of  alien  material,  so  as  to  make  of  it  a  new 
thing,  gave  a  property  right  to  him  who  had  so 
reworked  or  reshaped  it ;  while  the  school  of  Sabinus 
insisted  that  the  ownership  in  the  material  must 
carry  with  it  the  title  to  whatever  was  produced 
upon  the  material.  Justinian,  following  the  opinion 
of  Gaius,  took  a  middle  ground,  pointing  out  that 
the  decision  must  be  influenced  by  the  possibility  of 
restoring  the  material  to  its  original  form,  and  more 
particularly  by  the  question  as  to  whether  the 
material,  or  that  which  had  been  produced  upon 
it,  was  the  more  essential.  This  opinion  of  Gaius 
appears  to  have  had  reference  to  the  ownership  of  a 
certain  table  upon  which  a  picture  had  been  painted, 
and  the  decision  was  in  favor  of  the  artist.  This 
decision  contains  an  unmistakable  recognition  of 
immaterial  property,  not,  to  be  sure,  in  the  sense  of 
a   right   to   exclusive  reproduction,  but  in  the  par- 


358  THE   QUESTION   OF   COPYRIGHT. 

ticular  application  that,  while  material  property 
depends  upon  the  substance,  immaterial  property, 
that  is  to  say.  property  in  ideas,  depends  upon  the 
form. 

For  the  centuries  following  the  destruction  of  the 
Roman  Empire,  during  which  literary  undertakings 
were  confined  almost  entirely  to  the  monasteries,  the 
Roman  usage,  under  which  authors  could  dispose 
of  their  works  to  booksellers,  and  the  latter  could 
be  secured  control  of  the  property  purchases,  was 
entirely  forgotten.  No  limitation  was  placed  on 
the  duplication  of  works  of  literature.  According 
to  YVachter  (Das  Verlagsrecktt  1857),  it  was  even  the 
case  that  by  a  statute  of  the  University  of  Paris, 
issued  in  1223,  the  Parisian  booksellers  (who  were 
in  large  part  dependent  upon  the  university)  were 
enjoined  to  extend,  as  far  as  practicable,  the  dupli- 
cation of  works  of  a  certain  class.  The  business  of 
bookseller  at  that  time  consisted  as  much  in  the  rent- 
ing out  for  reading  and  copying  of  authentic  manu- 
script versions  as  in  the  sale  of  manuscript  copies.  In 
the  University  of  Paris,  as  well  as  in  that  of  Bologna, 
a  statute  specified  the  least  number  of  copies, 
usually  120,  of  a  manuscript  that  a  bookseller  must 
keep  in  stock,  and  the  prices  for  loaning  manuscripts 
were  also  fixed  by  statute.  The  difficulty  and 
expense  attending  the  reproduction  of  manuscripts 
was  in  every  case  considerable  (much  greater  than 
in  the  early  days  of  the  Roman  Empire),  and  when, 
therefore,  an  author  desired  to  secure  a  wide  circu- 
lation for  his  work,  he  came  to  regard  the  reproduc- 
tion of  copies  not  as  a  reserved  right  and  source  of 


LITERARY   PROPERTY.  359 

income,  but  as  a  service  to  himself,  which  he  was 
very  ready  to  facilitate,  and  even  to  compensate. 

Throughout  the  middle  ages,  whatever  immaterial 
property  in  the  realms  of  science,  art,  or  technics 
obtained  recognition  and  protection,  was  held  in 
ownership,  not  by  individuals,  but  by  churches, 
monasteries,  or  universities.  Before  the  invention 
of  printing,  the  writers  of  the  middle  ages  were 
fortunate  if,  without  a  ruinous  expenditure,  they 
could  succeed  in  getting  their  productions  before 
the  public.  The  printing-press  brought  with  it  the 
possibility  of  a  compensation  for  literary  labor. 
Very  speedily,  however,  the  unrestricted  rivalry  of 
printers  brought  into  existence  competing  and 
unauthorized  editions,  which  diminished  the  pros- 
pects of  profit,  or  entailed  loss  for  the  authors, 
editors,  and  printers  of  the  original  issue,  and  thus 
discouraged  further  similar  undertakings. 

As  there  was  no  general  enactment  under  which 
the  difficulty  could  be  met,  protection  for  the 
authors  and  their  representatives  was  sought  through 
special  "  privileges,"  obtained  for  separate  works  as 
issued.  The  earliest  privilege  of  the  kind  was, 
according  to  Putter  (Beitrdge  sum  deutschen  Staats- 
und  Fiirstenrecht),  that  conceded  by  the  republic 
of  Venice,  January  3,  1491,  to  the  jurist  Peter  of 
Ravenna,  securing  to  him,  and  to  the  publishers 
selected  by  him,  the  exclusive  right  for  the  printing 
and  sale  of  his  work,  PJitznix.  No  term  of  years 
appears  to  have  been  named  in  this  "  privilege."  It 
appears,  however,  that  most  of  the  early  Italian 
enactments  in  regard  to  literature  were  framed,  not 


360  THE   QUESTION   OF   COPYRIGHT. 

so  much  with  reference  to  the  protection  of  authors, 
as  for  the  purpose  of  inducing  printers  (acting  also 
as  publishers)  to  undertake  certain  literary  enter- 
prises which  were  believed  to  be  of  importance  to 
the  community. 

The  republic  of  Venice,  the  dukes  of  Florence, 
and  Leo  X.  and  other  popes  conceded  at  different 
times  to  certain  printers  the  exclusive  privilege  of 
printing,  for  specified  terms — rarely,  apparently, 
exceeding  fourteen  years — editions  of  certain  classic 
authors.  At  this  time,  when  the  business  of  the 
production  and  the  distribution  of  books  was  in  its 
infancy,  such  undertakings  must  have  been  attended 
with  exceptional  risk,  and  have  called  for  no  little 
enlightened  enterprise  on  the  part  of  the  printers. 
It  is  fair  to  assume  that  the  princes  conceding  these 
privileges  were  not  interested  in  securing  profits 
for  the  printers,  but  had  in  mind  simply  the  en- 
couragement, for  the  benefit  of  the  community,  of 
literary  ventures  on  the  part  of  the  editors  and 
printers. 

After  Italy,  it  is  in  France  that  we  find  the  next 
formal  recognition,  on  the  part  of  the  government, 
of  the  rights  of  property  in  literature.  From  the 
reign  of  Louis  XII.  to  the  beginning  of  the  sixteenth 
century  it  became  usage  for  the  publisher  (at  that 
time  identical  with  the  printer),  before  undertak- 
ing the  publication  of  a  work,  to  obtain  from  the 
king  an  authorization,  or  letters  patent,  the  term 
of  which  appears  to  have  varied  according  to  the 
nature  of  the  work  and  the  mood  of  the  monarch 
or  of  the  advising  ministers.     At  the  close  of  nearly 


LITERARY   PROPERTY.  361 

all  of  the  volumes  issued  previous  to  the  Revolution 
will  be  found  printed  :  Les  Lettres  du  Rol,  addressed, 
A  nos  antes  ct  feanx  conseillers,  les  gens  tenons  nos 
coars  de  Par  lenient  .  .  .  et  autres  nos  justiciers, 
et  qui  font  defenses  a  tons  libr  aires  et  impr  linear s  ct 
autres  personnes  de  quelque  qualite'  et  condition  qiielles 
solent,  d'lntrodulre  aucun  Impression  ctrangere  (that 
is  to  say,  any  unauthorized  reprint)  dans  aucun  lieu 
de  notre  obeissance. 

These  letters  were  in  the  first  place  obtained,  as 
in  Italy,  for  the  protection  of  special  editions  of  the 
classics,  but  very  speedily  the  native  literature 
increased  in  importance,  and  the  list  of  original 
works  came  to  outnumber  that  of  the  reprints  of 
ancient  authors.  The  rights  specified  in  the  letters 
were,  in  the  first  place,  nearly  always  vested  in  the 
printers,  but  it  is  evident  that  the  longer  the  terms 
of  the  royal  concessions  the  larger  the  remunera- 
tion that  could  be  looked  for  from  the  work,  and 
the  greater  the  price  that  the  printer  would  be  in  a 
position  to  pay  to  author  or  writer.  It  is  also  to  be 
noted  that  the  terms  granted  to  original  French 
works  were  usually  longer  than  those  for  the  new 
editions  of  the  classics  or  of  reprints  of  devotional 
works. 

According  to  Lowndes,  the  penalties  for  infring- 
ing copyright  were,  until  the  Revolution,  heavier 
in  France  than  anywhere  else  in  Europe.  It 
was  argued  that  such  infringement  constituted  a 
worse  crime  than  the  stealing  of  goods  from  the 
house  of  a  neighbor,  for  in  the  latter  case  some 
negligence  might  possibly  be  imputed  to  the  owner, 


362  THE   QUESTION   OF   COPYRIGHT. 

while  in  the  former  it  was  stealing  what  had  been 
confided  to  the  public  honor. 

The  status  of  literary  property  was  further  recog- 
nized and  defined  by  the  so-called  Ordinances  de 
Moulins  of  Henry  II.,  in  1556,  the  declaration  of 
Charles  IX.,  in  1571,  and  the  letters  patent  of 
Henry  III.,  in  1576,  but  the  character  of  the  meth- 
ods of  granting  and  defending  copyrights  was  not 
changed  in  any  material  respects. 

By  the  decree  of  the  National  Assembly  of  August 
4,  1789,  all  the  privileges  afforded  to  authors  and 
owners  of  literary  property  by  the  various  royal 
edicts  were  repealed.  In  July,  1793,  the  first  general 
Copyright  Act  was  passed,  under  which  protection 
was  conceded  to  the  author  for  his  life,  and  to  his 
heirs  and  assigns  for  ten  years  thereafter. 

The  imperial  Act  of  18 10  extended  the  term  to 
twenty  years  after  the  author's  death,  for  widow  or 
children,  the  term  remaining  at  ten  years  if  the 
heirs  were  further  removed.  In  1872  the  act  now 
(1883)  in  force  was  passed.  Under  this  the  term 
was  extended  to  fifty  years  from  the  death  of 
the  author.  The  provisions  of  the  act  were 
also  extended  to  the  colonies.  Foreigners  and 
Frenchmen  enjoy  the  right  equally,  and  no  restric- 
tion is  made  as  to  the  authors  being  residents  at  the 
time  the  copyright  is  taken  out.  It  is,  further,  not 
necessary  that  the  first  publication  of  the  work 
should  be  made  in  France.  In  case  the  work  be 
first  published  abroad,  French  copyright  may  subse- 
quently be  secured  by  depositing  two  copies  at  the 
Ministry  of  the  Interior  in  Paris,  or  with  the  secre- 


LITERARY   PROPERTY.  363 

tary  of  the  prefecture  in  the  departments.  The 
provisions  of  the  statute  affecting  foreigners  may 
be  modified  by  any  convention  concluded  between 
France  and  a  foreign  country. 

The  earliest  German  enactment  in  regard  to 
literary  property  was  the  "  privilege "  accorded  in 
Nuremberg,  in  1501,  to  the  poet  Conrad  Celtes,  for 
the  works  of  the  poet  Hrosvvista  (Helena  von  Ros- 
sow,  a  nun  of  the  Benedictine  cloister  of  Garders- 
heim).  As  this  author  had  been  dead  for  600  years, 
the  privilege  was  evidently  not  issued  for  her  protec- 
tion, but  must  rather  have  been  based  upon  the 
idea  of  encouraging  Celtes  in  a  praiseworthy  (and 
probably  unremunerative)  undertaking.  Between  the 
years  15 10  and  15 14  we  find  record  of  "privileges" 
issued  by  the  Emperor  Maximilian  in  favor  of  the 
sermons  of  Geiler  of  Kaisersberg,  and  the  writings 
of  Schottius,  Stabius,  and  others.  In  1534  Luther's 
translation  of  the  Bible  was  issued  in  Wittenberg 
under  the  protection  of  the  "  privilege "  of  the 
Elector  of  Saxony. 

Penalties  for  piratical  reprints  were  sometimes 
specified  in  the  special  "privileges,"  but  from  1660 
we  find  certain  general  acts  under  which  privileged 
works  could  obtain  protection,  and  their  owners 
could  secure  against  reprinters  uniform  penalties. 
Decrees  of  this  class  were  issued  by  the  city  of 
Frankfort  in  1657,  1660,  and  1775,  by  Nuremberg 
in  1623,  by  the  electorate  of  Saxony  in  1661,  and  by 
the  imperial  government  in  1646.  There  were  also 
enactments  in  Hanover  in  1778,  and  in  Austria  in 
1795.     All  of  the  above  specified  acts  expressly  per- 


3^4  THE   QUESTION   OF   COPYRIGHT. 

mitted  the  reprinting  of  "  foreign  "  works,  that  is, 
of  works  issued  outside  of  the  domain  covered  by 
the  enactment.  Piratical  reprinting  between  the 
different  German  states  increased,  therefore,  with 
the  growth  of  the  literature,  and  although  the 
injury  and  injustice  caused  by  it  were  recognized, 
and  measures  for  its  suppression  were  promised  by 
the  emperors  Leopold  II.  and  Francis  II.  (1790  and 
1792),  nothing  in  this  direction  could  be  accom- 
plished by  the  unwieldy  imperial  machinery. 

In  1794  legislation  was  inaugurated  in  the  Prus- 
sian parliament,  which  was  accepted  by  the  other 
states  of  Germany  (excepting  Wurtemberg  and 
Mecklenburg),  under  which  all  German  authors  and 
foreign  authors  whose  works  were  represented  by 
publishers  taking  part  in  the  book  fairs  in  Frankfort 
and  Leipzig  were  protected  throughout  the  states 
of  Germany  against  unauthorized  reprints. 

According  to  Klostermann,  these  enactments 
were  only  in  small  part  effective,  and  it  was  not 
until  forty  years  later  that,  under  the  later  acts  of 
the  new  German  confederacy,  German  authors  were 
able  to  secure  throughout  Germany  a  satisfactory 
protection.  It  is,  nevertheless,  the  case  that  to 
those  who  framed  the  Berlin  enactment  of  1794 
must  be  given  the  credit  of  the  first  steps  toward 
the  practical  recognition  of  international  copyright. 

The  copyright  statute  now  in  force  in  Germany, 
including  Elsass  and  Lothringen,  dates  from  1871. 
The  term  is  for  the  life  of  the  author  and  for  thirty 
years  thereafter.  The  copyright  registry  for  the 
empire  is  kept  at  Leipzig.     The  protection  of  the 


LITERARY   PROPERTY.  365 

law  is  afforded  to  the  works  of  citizens,  whether 
published  inside  or  outside  of  the  empire,  and  also 
to  works  of  aliens,  if  these  are  published  by  a  firm 
doing  business  within  the  empire. 

In  Italy,  literary  copyright  rests  upon  the  statute 
of  1865.  The  term  is  for  the  life  of  the  author  and 
for  forty  years  after  his  death,  or  for  eighty  years 
from  the  publication  of  the  work.  After  the  ex- 
piration of  the  first  forty  years,  however,  or  after 
the  death  of  the  author,  in  case  this  does  not  take 
place  until  more  than  forty  years  have  elapsed  since 
the  publication,  the  work  is  open  to  publication  by 
any  one  who  will  pay  to  the  author  of  the  copyright 
a  royalty  of  five  per  cent,  of  the  published  price.  It 
is  necessary  to  deposit  two  copies  of  the  work,  to- 
gether with  a  declaration  in  duplicate,  at  the  pre- 
fecture of  the  province.  No  distinction  is  made  be- 
tween citizens  and  aliens,  and  the  provisions  of  the 
law  are  applicable  to  the  authors  of  works  first  pub- 
lished in  any  foreign  country,  between  which  and 
Italy  there  is  no  copyright  treaty. 

In  Austria,  the  term  of  literary  copyright  is  for 
thirty  years  after  the  author's  death,  and  the  other 
provisions  of  the  act  in  force  are  similar  to  those  of 
the  German  statute. 

In  Holland  and  Belgium,  copyright,  formerly  per- 
petual, is  now  limited  to  the  life  of  the  author  and 
twenty  years  thereafter. 

In  Denmark,  copyright,  formerly  perpetual,  is  now 
limited  to  thirty  years  from  the  date  of  publication. 

In  Sweden,  copyright  was  also,  until  recently, 
perpetual.     By  the  Act  of  1877,  however,  it  now  en- 


366  THE  QUESTION   OF   COPYRIGHT. 

dures  for  the  life  of  the  author,  and  for  fifty  years 
thereafter.  The  provisions  of  the  law  are  made  ap- 
plicable to  the  works  of  foreign  authors  only  on 
condition  of  reciprocity. 

In  Spain,  copyright  rests  on  the  Act  of  1878,  and 
endures  during  the  life  of  the  author  and  for  eighty 
years  thereafter.  If  the  right  be  assigned  by  the 
author  and  the  author  leave  no  heirs,  it  belongs  to  the 
assignees  for  eighty  years  from  the  author's  death. 
In  the  case,  however,  of  heirs  being  left  by  the  au- 
thor, the  assignment  holds  good  for  but  twenty-five 
years,  after  which  the  ownership  reverts  to  the  heirs 
for  the  remaining  fifty-five  years  of  the  term.  Owners 
of  foreign  works  will  retain  their  rights  in  Spain, 
provided  they  adhere  to  the  law  of  their  own  coun- 
try. The  copyright  registry  is  kept  at  the  Ministry 
of  the  Interior,  and,  to  perfect  the  registry,  a  deposit 
of  three  copies  of  the  work  is  required.  The  Span- 
ish government  is  authorized  to  conclude  copyright 
treaties  with  foreign  countries  on  the  condition  of 
complete  reciprocity  between  the  contracting  par- 
ties. Under  such  an  arrangement  any  author,  or 
his  representative,  who  has  legally  secured  copyright 
in  the  one  country,  would  be,  without  further  for- 
malities, entitled  to  enjoy  it  in  the  other. 

In  Russia,  copyright  endures  for  the  life  of  the 
author  and  for  fifty  years  thereafter. 

In  Greece,  the  term  is  fifteen  years  from  publica- 
tion. 

In  Japan  the  law  of  copyright  dates  from  1874. 
Manuscript  must  be  examined  by  the  Department 
of  the  Interior,    and    if   found    free    from    disloyal 


LITERARY   PROPERTY.  367 

opinions  or  any  matter  calculated  to  injure  public 
morals,  a  certificate  of  protection  is  promptly  issued. 
Three  copies  of  the  work  must  be  deposited  in  the 
department,  and  the  fees  amount  to  the  value  of 
six  more  copies. 

In  China,  notwithstanding  the  large  body  of  na- 
tional literature,  no  laws  have  been  enacted  for  the 
protection  of  literary  property. 

In  Great  Britain,  the  Act  of  1842,  now  (1883)  m 
force,  provides  as  follows :  Copyright  in  a  book  en- 
dures for  forty-two  years  from  the  date  of  publica- 
tion, or  for  the  author's  life,  and  for  seven  years 
after,  whichever  of  these  two  terms  may  be  the 
longer.  The  first  publication  of  the  work  must  be 
in  Great  Britain.  The  copy  can  be  taken  out  by 
any  author  or  owner  who  is  a  British  citizen,  or  by 
an  alien  who  may  at  the  time  of  the  first  publication 
be  within  the  British  dominions  (in  any  portion  of 
the  British  Empire).  The  work  must  be  registered 
in  the  records  of  the  Stationers'  Company,  and  five 
copies  must  be  delivered  to  certain  institutions 
specified.  A  bill  is  now,  however,  before  Parliament, 
framed  mainly  upon  the  recommendations  of  the 
Copyright  Commission  of  1878,  which  provides  that 
the  term  of  copyright  for  books  shall  be  fifty  years; 
that  in  the  case  of  British  subjects  copyright  ex- 
tends to  all  the  British  dominions;  that  aliens, 
wherever  resident,  shall  be  entitled  to  British  copy- 
right on  registering  their  work  in  that  part  of  the 
British  dominions  where  it  v/as  first  published. 

The  history  of  the  status  of  literary  property  in 
England  prior  to   1863  is  given  in  detail  in  the  ar- 


368  THE   QUESTION   OF   COPYRIGHT. 

tide  of  Mr.  Macleod  (vol.  i.,  p.  642).  It  is  in  Eng- 
land that  the  nature  and  basis  of  copyright  have 
received  the  most  thorough  consideration,  and  the 
English  opinions  (although  representing  very  wide 
differences  among  themselves)  have  been  the  most 
important  contributions  to  the  discussion  of  the 
subject.  It  is  sufficient  to  note  here  that  the  first 
record  of  the  recognition  of  property  in  literature 
appears  in  1558  (that  is,  half  a  century  later  than 
in  France  or  Germany),  when  the  earliest  entry  of 
titles  was  made  on  the  register  of  the  Company  of 
Stationers  in  London.  As  early  as  1534,  however, 
Henry  VIII.  granted  to  the  University  of  Cambridge 
the  exclusive  right  of  printing  certain  books  in 
which  the  crown  claimed  a  prerogative.  Afterward, 
patents  aim  privilegio  were  granted  to  individuals. 
Prior  to  17 10  there  was  no  legislation  creating 
literary  property  or  confining  ownership,  nor  any 
abridging  its  perpetuity  or  restricting  its  enjoyment. 
It  was  understood,  therefore,  to  owe  its  existence  to 
common  law,  and  this  conclusion,  arrived  at  by  the 
weightiest  authorities,  remained  practically  unques- 
tioned until  1774.  For  the  provisions  of  the  Act  of 
1710  (8  Anne),  the  details  of  the  cases  of  Miller  vs. 
Taylor  (1769),  and  Donaldson  vs.  Becket  (1774),  the 
discussions  concerning  these  cases,  with  the  opinions 
of  Lord  Mansfield,  Lord  Camden,  and  Justice  Yates, 
and  also  for  the  debate  attending  the  framing  of 
the  Act  of  1842,  with  the  arguments  of  Talfourd, 
Lord  Campbell,  Justice  Coleridge,  Lord  Macaulay, 
and  Thomas  Hood,  the  reader  is  referred  to  Mr. 
Macleod's  paper. 


LITERARY   PROPERTY.  369 

In  the  United  States,  the  first  act  in  regard  to 
copyright  was  passed  in  Connecticut  in  January, 
1783.  This  was  followed  by  the  Massachusetts  act 
of  March,  1783,  that  of  Virginia  in  1785,  and  New 
York  and  New  Jersey  in  1786.  These  acts  were  due 
more  particularly  to  the  efforts  of  Noah  Webster, 
and  their  first  service  was  the  protection  of  his  fa- 
mous Speller.  Webster  journeyed  from  State  capital 
to  State  capital,  to  urge  upon  governors  and  legis- 
latures the  immediate  necessity  of  copyright  laws, 
and  under  his  persistency  measures  had  also  been 
promised,  and  in  part  framed,  in  Rhode  Island, 
Pennsylvania,  Delaware,  Maryland,  and  South  Caro- 
lina. The  necessity  for  State  laws  on  the  subject 
was,  however,  obviated  by  the  United  States 
statute  of  1790.  In  creating  a  public  and  legis- 
lative opinion  which  made  such  a  law  possible, 
Webster's  writings  and  personal  influence  were  all- 
important. 

Previous  to  the  adoption  of  the  Federal  Constitu- 
tion, in  1787,  a  general  copyright  law  was  not  within 
the  province  of  the  central  government,  and  in 
order  to  encourage  the  States  in  the  framing  of 
copyright  legislation,  a  resolution,  proposed  by 
Madison,  was  adopted  in  Congress  in  May,  1783, 
recommending  to  the  States  the  adoption  of  laws 
securing  copyright  for  a  term  of  not  less  than  four- 
teen years.  The  State  acts  passed  prior  to  this 
resolution  had  conceded  a  term  of  twenty-one  years. 
The  Act  of  1790  provided  for  the  shorter  time  sug- 
gested by  Madison.  The  Act  of  183 1  extended  the 
fourteen  years  to  twenty-eight,  with  privilege  to  the 


S70  THE    QUESTION   OF   COPYRIGHT. 

author,  his  widow,  or  children,  of  renewal  for  fourteen 
years  more.  The  act  of  1834  provided  that  all  deeds 
for  the  transferor  assignment  of  copyright  should  be 
recorded  in  the  office  in  which  the  original  entry  had 
been  made.  In  1846,  the  act  establishing  the  Smith- 
sonian Institution  required  that  one  copy  of  the 
work  copyrighted  should  be  delivered  to  that  insti- 
tution, and  one  copy  to  the  Library  of  Congress. 
This  provision  was  repealed  in  1859,  by  a  statute 
which  transferred  to  the  Department  of  the  Interior 
the  custody  of  the  publications  and  records.  In 
1865  the  copies  were  again  ordered  to  be  delivered 
to  the  Library  of  Congress.  In  ie 61  an  act  was 
passed,  providing  that  cases  of  copyright  could, 
without  regard  to  the  amount  involved,  be  appealed 
to  the  Supreme  Court. 

The  act  now  in  force  in  the  United  States  is  that 
of  July,  1870  (see  Rev.  Stat.,  §§  4948-4971).  This 
provides  that  the  business  of  copyrights  shall  be 
under  charge  of  the  Librarian  of  Congress;  that  copy- 
rights may  be  secured  by  any  citizen  of  the  United 
States  or  resident  therein  ;  that  the  term  of  copy- 
right shall  be  twenty-eight  years,  with  the  privilege 
of  renewal  for  the  further  term  of  fourteen  years  by 
the  author,  if  he  be  still  living,  and  continues  to  be 
a  citizen  or  a  resident,  or  by  his  widow  or  children, 
if  he  be  dead  ;  that  two  copies  of  the  work  shall  be 
deposited  in  the  Library  of  Congress  ;  that  the  work 
must  first  be  published  in  the  United  States,  and 
that  the  original  jurisdiction  of  all  suits  under  the 
copyright  laws  shall  rest  with  the  United  States 
Circuit  Courts. 


LITERARY   PROPERTY.  37 1 

Under  the  present  interpretation  of  the  courts 
in  both  the  United  States  and  Europe,  copyright 
in  published  works  exists  only  by  virtue  of  the 
statutes  defining  (or  establishing)  it,  while  in  works 
that  have  not  been  published,  such  as  compositions 
prepared  exclusively  for  dramatic  representation, 
the  copyright  obtains  through  the  common  law. 
Copyright  by  statute  is  of  necessity  limited  to  the 
term  of  years  specified  in  the  enactment,  while 
copyright  at  common  law  has  been  held  to  be  per- 
petual. The  leading  English  decisions  have  before 
been  referred  to.  The  United  States  decision, 
which  still  serves  as  a  precedent  on  the  point  of 
the  statutory  limitation  of  copyright,  is  that  of  the 
United  States  Supreme  Court  in  1834,  in  the  case  of 
Wheaton  vs.  Peters.  This  decision  involved  the 
purport  of  the  United  States  law  of  1790,  and  the 
determination  of  the  same  question  that  had  been 
decided  by  the  House  of  Lords  in  1774,  viz., 
whether  copyright  in  a  published  work  existed  by 
the  common  law,  and,  if  so,  whether  it  had  been 
taken  away  by  statute.  The  court  held  that  the 
law  had  been  settled  in  England,  the  act  of  8  Anne 
having  taken  away  any  right  previously  existing  at 
common  law  ;  that  there  was  no  common  law  of  the 
United  States  ;  and  that  the  copyright  statute  of 
1790  did  not  affirm  a  right  already  in  existence,  but 
created  one.  Justices  Thompson  and  Baldwin,  in 
opposing  the  decision  of  the  four  justices  concurring 
in  the  decision,  took  the  ground  that  the  common 
law  of  England  did  prevail  in  the  United  States, 
and  that  copyright  at  common  law  had  been  fully 


372  THE   QUESTION   OF   COPYRIGHT. 

recognized  ;  and  that,  even  if  it  were  admitted  that 
such  copyright  had  been  abrogated  in  England  by 
the  statute  of  Anne,  such  statute  had,  of  course,  no 
effect  either  in  the  colonies  or  in  the  United  States. 
"  These  considerations,"  says  Drone,  "  deprive 
Wheaton  vs.  Peters  of  much  of  its  weight  as  an 
authority."  In  1880,  in  the  case  of  Putnam  vs. 
Pollard,  it  was  claimed  by  the  plaintiff  that  the 
decision  in  Wheaton  vs.  Peters  could  in  any  case 
only  make  a  precedent  for  Pennsylvania ;  that  the 
English  common  law  obtained  in  the  State  of  New 
York,  and  could  not  have  been  affected  by  the 
statute  of  Anne ;  but  the  New  York  Supreme 
Court  decided  that  Wheaton  vs.  Peters  consti- 
tuted a  valid  precedent. 

What  may  be  the  Subject  of  Copyright.  In  order 
to  acquire  a  copyright  in  a  work,  it  is  necessary  that 
it  should  be  original.  The  originality  can,  however, 
consist  in  the  form  or  arrangement  as  well  as  in 
the  substance.  Corrections  and  additions  to  an  old 
work,  not  the  property  of  the  compiler,  can  also 
secure  copyright.  The  copyright  of  private  letters, 
forming  literary  compositions,  is  in  the  composer 
and  not  in  the  receiver.  (Oliver  vs.  Oliver,  Percival 
vs.  Phipps  et  ah,  Story's  Com) 

The  English  statute,  5  and  6  Vict.,  defines 
"  book  "  "  to  mean  and  include  every  volume,  part 
or  division  of  a  volume,  pamphlet,  sheet  of  letter- 
press, sheet  of  music,  map,  chart,  or  plan  separately 
published."  The  right  of  property  in  lectures, 
whether  written  or  oral,  is  now  confirmed  by  stat- 
ute, the  most   important    English   decision  on  the 


LITERARY   PROPERTY.  Z7?> 

point  being  that  of  Abernethy  vs.  Hutchinson,  and 
American  precedents  being  Bartlett  vs.  Crittenden, 
Keene  vs.  Kimball,  and  Putnam  vs.  Meyer.  Copy- 
right can  be  secured  for  original  arrangements  of 
common  material  or  novel  presentations  of  familiar 
facts.  In  Putnam  vs.  Meyer  the  New  York  Supreme 
Court  held  that  certain  tabular  lists  of  anatomical 
names,  arranged  in  a  peculiar  and  arbitrary  manner 
for  the  purpose  of  facilitating  the  work  of  memo- 
rizing, were  entitled  to  protection. 

Abridgments  and  abstracts,  which  can  be  called 
genuine  and  just,  are  also  entitled  to  copyright. 
(Lawrence  vs.  Dana,  Gray  vs.  Russell  et  al.)  Ac- 
cording to  English  precedent,  copyright  cannot 
exist  in  a  work  of  libelous,  immoral,  obscene,  or  irre- 
ligious tendency.  There  is  no  record  in  the  United 
States  of  a  case  in  which  the  question  of  copyright 
in  irreligious  books  has  been  considered.  Drone 
points  out  that  the  uniform  construction  of  the  law 
relating  to  blasphemy  is  evidence  of  the  large  free- 
dom of  inquiry  and  discussion  allowed  in  religious 
matters.  On  this  point  the  opinion  of  Justice 
Cooley  (People  vs.  Ruggles,  8  Johns.  Rep.,  N.  Y.) 
is  worth  citing  :  "  It  does  not  follow  because  blas- 
phemy is  punishable  as  a  crime,  that  therefore  one 
is  not  at  liberty  to  dispute  and  argue  against  the 
truth  of  the  Christian  religion,  or  of  any  accepted 
dogma.  Its  '  divine  origin  and  truth '  are  not  so  far 
admitted  in  the  law  as  to  preclude  their  being  con- 
troverted. To  forbid  discussions  on  this  subject, 
except  by  the  various  sects  of  believers,  would  be  to 
abridge  the  liberty  of  speech  and  of  the  press  on  a 


374  THE   QUESTION   OF   COPYRIGHT. 

point  which,  with  many,  would  be  regarded  as  the 
most  important  of  all."  In  quoting  a  similar  opin- 
ion of  Justice  Story,  Drone  concludes  that  "there 
appears  to  be  no  good  reason  why  valid  copyright 
will  not  rest  in  a  publication  in  which  are  denied  any 
or  all  of  the  doctrines  of  the  Bible;  provided  the 
motives  and  manner  of  the  author  be  such  as  not 
to  warrant  the  finding  of  a  case  of  blasphemy  or 
immorality." 

Several  of  the  questions  concerning  the  status 
and  the  defence  of  literary  property  in  this  country 
are  only  now  beginning  to  come  into  discussion. 
The  literature  of  the  country  is  still  so  young  that 
as  yet  but  a  small  portion  of  it  has  survived  the 
statute  term  of  copyright.  From  the  present  time, 
however,  as  the  terms  of  works  which  have  estab- 
lished a  position  as  classics  begin  in  part  or  in  whole 
to  expire,  we  can  look  forward  to  a  larger  number 
of  issues  and  of  suits  connected  with  alleged  in- 
fringements of  copyright. 

The  case  of  Putnam  vs.  Pollard,  decided  in  the 
New  York  Supreme  Court  in  1881,  covered  some 
points  that  appear  to  have  not  before  received  con- 
sideration. The  defendants  had  reprinted  some 
fragmentary  and  unrevised  portions  of  the  works  of 
Washington  Irving,  on  which  the  copyright  had 
expired,  and  offered  these  for  sale  under  the  desig- 
nation of  Irving  s  Works.  The  plaintiff  had  for  a 
number  of  years  used  this  title  to  describe  the  au- 
thorized, complete,  and  revised  writings  of  this 
author,  in  the  shape  in  which  he  had  finally  pre- 
pared them  for  posterity.     The  plaintiff  sought  to 


LITERARY   PROPERTY.  375 

enjoin  the  sale,  under  the  above  title,  of  the  frag- 
mentary work,  on  the  several  grounds  that  it  misled 
the  public,  caused  injury  to  the  literary  reputation 
of  Irving,  and  interfered  with  the  property  rights  of 
Irving's  heirs.  The  courts  decided,  however,  that 
as  long  as  the  volumes  in  question  contained  noth- 
ing but  material  which  had  actually  been  written  by 
Irving,  it  was  not  unlawful  to  designate  them  as 
Irving's  Works,  even  though  the  writings  should 
not  be  complete  or  in  their  final  form ;  and  the 
injunction  was  denied.  The  question  involved  was, 
it  will  be  noted,  one  of  trade-mark,  and  the  decision 
took  the  ground  that  an  author's  name,  combined 
with  the  term  "  works,"  does  not  constitute  a  trade- 
mark. Under  this  ruling,  it  might  be  proper  to  add 
to  the  title-pages  of  volumes  of  "  fragments"  sold 
as  "  works,"  the  caution  "  Caveat  emptor" 

The  four  theories  which  have  resulted  from  this  dis- 
cussion of  a  century  are  thus  summarized  by  Drone: 
I.  That  intellectual  productions  constitute  a  species 
of  property  founded  in  natural  law,  recognized  by 
the  common  law,  and  neither  lost  by  publication 
nor  taken  away  by  legislation.  2.  That  an  author 
has,  by  common  law,  an  exclusive  right  to  control 
his  works  before,  and  not  after,  publication.  3.  That 
this  right  is  not  lost  by  publication,  but  has  been 
destroyed  by  statute.  4.  That  copyright  is  a  mo- 
nopoly of  limited  duration,  created  and  wholly 
regulated  by  the  legislature,  and  that  an  author 
has,  therefore,  no  other  title  to  his  published  works 
than  that  given  by  statute. 

The  first  country  to  take  action  in  regard  to  in- 


3?6  THE   QUESTION   OF   COPYRIGHT. 

ternational  copyright  was  Prussia,  which,  in  1836, 
passed  an  act  conceding  the  protection  of  the  Prus- 
sian statute  to  the  writers  of  every  country  which 
should  grant  reciprocity.  In  1837  a  copyright  con- 
vention was  concluded  between  the  different  mem- 
bers of  the  German  confederation. 

This  was  followed  by  the  English  Act  of  1838,  1 
and  2  Vict.,  c.  59,  amended  and  extended  by  15 
Vict.,  c.  12.  This  act  provided  that  her  majesty 
might,  by  order  in  council,  grant  the  privilege  of 
copyright  to  authors  of  books,  etc.,  first  published 
in  any  foreign  country  to  be  named  in  such  order, 
provided  always  that  "  due  protection  had  been  se- 
cured by  the  foreign  power  so  named  in  such  order 
in  council,  for  the  benefit  of  parties  interested  in 
works  first  published  in  the  British  dominions." 

Different  provisions  may  be  made  in  the  arrange- 
ments with  different  countries.  Under  the  general 
Copyright  Act,  no  right  of  property  is  recognized  in 
any  book,  etc.,  not  first  published  in  her  majesty's 
dominions.  Hence,  British  as  well  as  foreign  au- 
thors, first  publishing  abroad,  have  no  protection  in 
Great  Britain  unless  a  convention  has  been  framed, 
under  the  International  Copyright  Act,  between 
Great  Britain  and  the  country  in  which  the  publi- 
cation is  made.  It  may  be  noted  here  that  the 
condition  of  "  first  publication,"  which  obtains  in 
the  statutes  of  nearly  all  countries,  has  been  held  to 
be  complied  with  by  a  simultaneous  publication  in 
two  or  more  countries. 

Under  this  International  Copyright  Act,  Great 
Britain  has  entered  into  copyright  conventions  with 


LITERARY   PROPERTY.  377 

the  following  countries:  with  Saxony,  in  1846; 
France,  in  1851  ;  Prussia,  in  1855;  states  of  Ger- 
many comprised  in  the  German  empire :  Anhalt, 
in  1853;  Brunswick,  in  1849;  Hamburg,  in  1853; 
Hanover,  in  1847;  Oldenburg,  in  1847;  Hesse- 
Darmstadt,  in  1862  ;  Thuringian  Union,  in  1847. 
(It  is  not  clear  what  effect  the  absorption  of  these 
states  into  the  empire  may  have  had  upon  their 
several  copyright  treaties.)  With  Spain,  in  1857 
(temporarily  renewed  in  1880);  Belgium,  in  1855; 
and  Sardinia,  in  1862  (confirmed  in  1867  by  the 
kingdom  of  Italy). 

The  conventions  with  the  several  German  states 
contain  essentially  identical  provisions,  which  are  as 
follows :  The  author  of  any  book  to  whom  the 
laws  of  either  state  (English  or  German)  give  copy- 
right, shall  be  entitled  to  exercise  that  right  in  the 
other  of  such  states,  for  the  same  term  to  which  an 
author  of  a  similar  work  would  be  entitled  if  it  were 
first  published  in  such  other  state.  The  authors  of 
each  state  shall  enjoy  in  the  other  the  same  protec- 
tion against  piracy  and  unauthorized  republication, 
and  shall  have  the  same  remedies  before  courts  of 
justice,  as  the  law  affords  to  the  domestic  authors. 
Translators  are  protected  against  a  piracy  of  their 
translation,  but  acquire  no  exclusive  right  to  trans- 
late a  work  except  in  the  following  case :  the 
author  who  notifies  on  the  title-page  of  his  book 
his  intention  of  reserving  the  right  of  translation, 
will,  during  five  years  from  the  first  publication  of 
the  book,  be  entitled  to  protection,  in  the  treaty 
state,  from  the  publication  of  any  translation  not 


3/8  THE   QUESTION   OF  COPYRIGHT. 

authorized  by  him.  In  order,  however,  to  secure 
this  protection,  the  author  must,  within  three 
months  of  the  first  publication  of  his  book,  register 
the  title  and  deposit  a  copy  in  the  proper  office  in 
the  treaty  state ;  part  of  the  authorized  translation 
must  appear  within  a  year,  and  the  whole  of  it 
within  three  years  of  the  deposit  and  registration  of 
the  original ;  and  the  translation  must  itself  be  duly 
registered  and  deposited.  When  a  work  is  issued  in 
parts,  each  part  shall  be  treated  as  a  separate  book  ; 
but  notice  of  the  reservation  of  the  right  of  transla- 
tion need  be  printed  only  on  the  first  page.  The 
importation  into  either  of  the  two  states  of  unau- 
thorized copies  of  works  protected  by  the  conven- 
tion is  forbidden.  A  certified  copy  of  the  entry  in 
the  registry  of  either  state  shall  prima  facie  confer 
an  exclusive  right  of  republication  within  such  state. 

The  provisions  of  the  existing  conventions  be- 
tween England  and  France,  Spain,  Belgium,  and 
Italy,  are  essentially  identical  with  those  of  the 
German  treaty.  The  continental  book,  on  the  title- 
page  of  which  has  been  duly  printed  the  announce- 
ment of  the  reservation  of  the  right  of  translation, 
must  be  duly  registered  at  Stationers'  Hall,  London. 
The  English  work  must  be  registered  for  France  at 
the  Bureau  de  la  Librairie  of  the  Ministry  of  the  In- 
terior, in  Paris,  and  for  Spain  and  Belgium  at  the 
corresponding  offices  in  Madrid  and  Brussels. 

The  provisions  of  the  treaty  between  Spain  and 
France,  which  is  based  upon  the  Spanish  Copyright 
Act  of  1878,  have,  in  the  main,  been  followed  in  the 
conventions  between   Spain  and   Italy,   Spain   and 


LITERARY   PROPERTY.  379 

Portugal,  France  and  Italy,  etc.  They  are  as  fol- 
lows:  i.  Complete  reciprocity  between  the  con- 
tracting parties.  2.  Treatment  of  each  nation  by 
the  other  as  the  most  favored  nation.  3.  Any  au- 
thor or  his  representative  who  has  legally  secured 
copyright  in  the  one  country,  to  enjoy  it  forthwith 
in  the  other,  without  further  formalities.  4.  The 
prohibition  in  each  country  of  the  printing,  selling, 
importation  or  exportation  of  works  in  the  language 
of  the  other  country,  without  the  consent  of  the 
owners  of  the  copyright  therein. 

The  copyright  treaty  between  France  and  Ger- 
many, as  framed  in  1883,  is  a  step  in  advance  in 
many  ways.  By  Article  10,  authors  of  the  two 
countries  are  spared  all  formalities  of  registration, 
and  the  appearance  of  the  writer's  name  on  the  title- 
page  is  to  be  considered  sufficient  proof  of  his 
rights,  unless  the  contrary  is  proved.  In  the  case 
of  anonymous  or  pseudonymous  works  the  publisher 
will  be  regarded  as  the  author's  representative. 
The  knotty  point  of  the  right  of  translation  has 
been  solved  by  a  compromise.  The  necessity  to 
print  a  reserve  of  the  right  of  translation  on  the 
book  is  abolished,  as  is  the  registration  of  transla- 
tions. The  author  is  to  retain  his  right  of  transla- 
tion for  ten  years,  instead  of  the  five  hitherto 
allowed.  When  a  work  is  issued  in  parts,  the  ten 
years  are  to  be  counted  from  the  issue  of  the  last 
part.  Books  and  acting  plays  are  put  on  the  same 
footing ;  and  the  treaty  will  apply  to  works  already 
published. 

An  international  literary  association  was  organ- 


380  THE   QUESTION   OF   COPYRIGHT. 

ized  some  years  ago,  with  Victor  Hugo  as  its  first 
president,  and  has  been  of  service  in  calling  atten- 
tion to  defects  in  existing  enactments  and  conven- 
tions for  the  protection  of  property  in  literature. 
It  has  recently  called  special  attention  to  the  ex- 
ceptional position  occupied  by  the  United  States 
toward  the  literature  of  other  countries. 

Between  no  two  countries  has  the  exchange  of 
literary  productions  been  so  considerable  or  so  im- 
portant as  between  Great  Britain  and  the  United 
States.  The  interests  of  authors,  of  readers,  of  pub- 
lishers, of  national  literature  and  of  national  moral- 
ity, have  alike  demanded  that  the  exchange  should 
be  placed  under  international  regulation,  and  that 
this  extensive  use  by  the  public  of  each  country  of 
the  literature  of  the  other  should  be  conditioned 
upon  an  adequate  acknowledgment  of  the  rights.of 
the  producers  of  such  literature. 

It  is  a  disgrace  that  the  two  great  English-speak- 
ing people,  claiming  to  stand  among  the  most  en- 
lightened of  the  community  of  nations,  should  be 
practically  the  only  members  of  such  community 
which  have  failed  to  arrive  at  an  agreement  in  this 
all-important  international  issue ;  and  it  is  mortify- 
ing for  an  American  to  be  obliged  to  admit  that  the 
responsibility  for  such  failure  must,  in  the  main,  rest 
with  the  United  States. 

The  reproduction  of  British  literature  in  this 
country  has,  during  the  past  century,  been  much 
more  considerable  than  that  of  American  literature 
in  Great  Britain,  and  the  direct  loss  to  the  English 
authors,  through  the  want  of  an  assured  and  legal- 


LITERARY  PROPERTY.  38 1 

ized  remuneration  from  the  American  editions  of 
their  works,  has  therefore  been  greater  than  the  cor- 
responding direct  loss  to  American  authors.  For 
this  and  for  other  reasons,  the  suggestions  and  prop- 
ositions for  an  international  arrangement  have  been 
more  frequent  and  more  pressing  on  the  part  of 
England.  And  although  it  is  certainly  true,  that 
from  an  early  date  the  rightfulness  and  desirability 
of  an  international  copyright  have  been  maintained 
in  this  country,  not  only  by  authors,  but  by  lead- 
ing publishers  and  many  others  who  have  given 
thought  and  labor  to  the  matter,  it  is  nevertheless 
the  case  that  the  views  of  these  advocates  of  a 
measure  have  not  as  yet  been  successful  in  securing 
the  legislation  required  to  change  the  national  policy. 
This  policy  still  persistently  refuses  to  recognize  the 
rights  of  any  alien  writers,  and,  through  such  refusal, 
continues  to  inflict  a  grievous  and  indefensible  wrong, 
not  only  upon  such  alien  writers,  but  also  upon  the 
authors  and  the  literature  of  our  own  country. 

The  history  of  the  efforts  made  in  this  country  to 
secure  international  copyright  is  not  a  long  one. 
The  attempts  have  been  few,  and  have  been  lacking 
in  organization  and  in  unanimity  of  opinion,  and 
they  have  for  the  most  part  been  made  with  but 
little  apparent  expectation  of  any  immediate  suc- 
cess. Those  interested  seem  to  have  nearly  always 
felt  that  popular  opinion  was,  on  the  whole,  against 
them,  and  that  progress  could  be  hoped  for  only 
through  the  slow  process  of  building  up  by  educa- 
tion and  discussion  a  more  enlightened  public  under- 
standing. 


382  THE   QUESTION   OF   COPYRIGHT. 

In  1838,  after  the  passing  of  the  first  International 
Copyright  Act  in  Great  Britain,  Lord  Palmerston  in- 
vited the  American  government  to  co-operate  in 
establishing  a  copyright  convention  between  the 
two  countries.  In  the  year  previous,  Henry  Clay, 
as  chairman  of  the  joint  Library  Committee,  had  re- 
ported to  the  Senate  very  strongly  in  favor  of  such 
a  convention,  taking  the  ground  that  the  author's 
right  of  property  in  his  work  is  similar  to  that  of  the 
inventor  in  his  patent.  This  is  a  logical  position  for 
a  protectionist,  interested  in  the  rights  of  labor,  to 
have  taken,  and  the  advocates  of  the  so-called  pro- 
tective system,  who  call  themselves  the  followers  of 
Henry  Clay,  but  who  are  to-day  opposed  to  any  full 
recognition  of  authors'  rights,  would  do  well  to  bear 
in  mind  this  opinion  of  their  ablest  leader. 

No  action  was  taken  in  regard  to  Mr.  Clay's  re- 
port or  Lord  Palmerston's  proposal.  In  1840  Mr. 
G.  P.  Putnam  issued  in  pamphlet  form  An  Argu- 
ment in  Behalf  of  International  Copyright,  the  first 
publication  on  this  subject  in  the  United  States  of 
which  we  find  record.  It  was  prepared  by  himself 
and  Dr.  Francis  Lieber.  In  1843  Mr.  Putnam  ob- 
tained the  signatures  of  ninety-seven  publishers, 
printers,  and  binders  to  a  petition  he  had  prepared, 
which  was  duly  presented  to  Congress.  It  took  the 
broad  ground  that  the  absence  of  an  international 
copyright  was  "  alike  injurious  to  the  business  of 
publishing  and  to  the  best  interests  of  the  people  at 
large."  A  memorial,  originating  in  Philadelphia, 
was  presented  the  same  year,  in  opposition  to 
this  petition,  setting  forth,  among  other  consider- 


LITERARY   PROPERTY.  383 

ations,  that  an  international  copyright  would  pre- 
vent the  adaptation  of  English  books  to  American 
wants. 

In  the  report  made  by  Mr.  Baldwin  to  Congress 
twenty-five  years  later,  he  remarks  that  "  the  muti- 
lation and  reconstruction  of  American  books  to  suit 
English  wants  are  common  to  a  shameless  extent." 

In  1853  the  question  of  a  copyright  convention 
with  Great  Britain  was  again  under  discussion,  the 
measure  being  favored  by  Mr.  Everett,  at  that  time 
Secretary  of  State.  A  treaty  was  negotiated  by 
him,  in  conjunction  with  Mr.  John  F.  Crampton, 
minister  in  London,  which  provided  simply  that  all 
authors,  artists,  composers,  etc.,  who  were  entitled 
to  copyright  in  one  country,  should  be  entitled  to 
it  in  the  other  on  the  same  terms  and  for  the  same 
length  of  time.  The  treaty  was  reported  favorably 
from  the  Committee  on  Foreign  Relations,  but  was 
laid  upon  the  table  in  the  Committee  of  the  Whole. 
While  this  measure  was  under  discussion,  five  of  the 
leading  publishing  houses  in  New  York  addressed  a 
letter  to  Mr.  Everett,  in  which,  while  favoring  a  con- 
vention, they  advised:  1.  That  the  foreign  author 
must  be  required  to  register  the  title  of  his  work  in 
the  United  States  before  its  publication  abroad. 
2.  That  the  work,  to  secure  protection,  must  be 
issued  in  the  United  States  within  thirty  days  of  its 
publication  abroad  ;  and  3.  That  the  reprint  must 
be  wholly  manufactured  in  the  United  States. 

In  1853  Henry  C.  Carey  published  his  Letters  on 
International  Copyright,  in  which  he  took  the  ground 
that  the  facts  and  ideas  in  a  literary  production  are 


384  THE   QUESTION   OF   COPYRIGHT. 

the  common  property  of  society,  and  that  property 
in  copyright  is  indefensible. 

In  1858  a  bill  was  introduced  into  the  House  of 
Representatives  by  Mr.  Morris,  of  Pennsylvania, 
providing  for  international  copyright  on  the  basis 
of  an  entire  remanufacture  of  the  foreign  work,  and 
its  reissue  by  an  American  publisher  within  thirty 
days  of  its  publication  abroad.  This  bill  does  not 
appear  to  have  received  any  consideration. 

In  March,  1868,  a  circular  letter,  headed  "Justice 
to  Authors  and  Artists,"  was  issued  by  a  committee 
composed  of  George  P.  Putnam,  S.  Irenaeus  Prime, 
Henry  Ivison,  James  Parton,  and  Egbert  Hazard, 
calling  together  a  meeting  for  the  consideration  of 
the  subject  of  international  copyright.  The  meet- 
ing was  held  on  the  9th  of  April,  Mr.  Bryant  pre- 
siding, and  a  society  was  organized  under  the  title 
of  the  "Copyright  Association  for  the  Protection 
and  Advancement  of  Literature  and  Art,"  of  which 
Mr.  Bryant  was  made  president,  and  E.  C.  Stedman 
secretary.  The  primary  object  of  the  association 
was  stated  to  be  "  to  promote  the  enactment  of  a 
just  and  suitable  international  copyright  law  for 
the  benefit  of  authors  and  artists  in  all  parts  of  the 
world."  A  memorial  had  been  prepared  by  the 
above-mentioned  committee  to  be  presented  to  Con- 
gress, which  requested  Congress  to  give  its  early 
attention  to  the  passage  of  a  bill,  "  To  secure  in  all 
parts  of  the  world  the  right  of  authors,"  but  which 
made  no  recommendations  as  to  the  details  of  any 
measure.  Of  the  153  signatures  attached  to  this  me- 
morial, 101  were  those  of  authors,  and  19  of  publishers. 


LITERARY   PROPERTY.  385 

In  the  fall  of  1868  Mr.  J.  D.  Baldwin,  member  of 
the  House  from  Massachusetts,  reported  a  bill,  the 
provisions  of  which  had  in  the  main  received  the 
approval  of  the  Copyright  Association,  which  pro- 
vided that  a  foreign  work  could  secure  a  copyright 
in  this  country,  provided  it  was  wholly  manufactured 
here  and  should  be  issued  for  sale  by  a  publisher 
who  was  an  American  citizen.  The  bill  was  recom- 
mitted to  the  joint  Committee  on  the  Library,  and 
no  action  was  taken  upon  it.  Mr.  Baldwin  was  of 
opinion  that  an  important  cause  for  the  shelving  of 
the  measure  without  debate  was  the  impeachment 
of  President  Johnson,  which  was  at  that  time  ab- 
sorbing the  attention  of  Congress  and  the  country. 
No  general  expression  of  opinion  was,  therefore, 
elicited  upon  the  question  from  either  Congress  or 
the  public,  and  even  up  to  this  date  (June,  1883) 
the  question  has  never  reached  such  a  stage  as  to 
enable  an  expression  of  public  opinion  to  be  fairly 
arrived  at.  In  1871  Mr.  Cox,  of  New  York,  intro- 
duced a  bill  which  was  practically  identical  with  Mr. 
Baldwin's  measure,  and  which  was  also  recommitted 
to  the  Library  Committee. 

In  1870  a  copyright  convention  was  proposed  by 
Lord  Clarendon,  which  called  forth  some  discussion, 
but  concerning  which  no  action  was  taken  on  the 
part  of  the  American  government  until  1872. 

In  1872  the  new  Library  Committee  called  upon 
the  authors,  publishers,  and  others  interested  to 
assist  in  framing  a  bill.  At  a  meeting  of  the  pub- 
lishers, held  in  New  York,  a  majority  of  the  firms 

present  were  in  favor  of  the  provision  of  Mr.  Cox's 

25 


386  THE   QUESTION   OF   COPYRIGHT. 

bill.  The  report  was,  however,  dissented  from  by 
a  large  minority,  on  the  ground  that  the  bill  was 
drawn  in  the  interests  of  the  publishers  rather  than 
that  of  the  public ;  that  the  prohibition  of  the  use 
of  foreign  stereotypes  and  electrotypes  of  illustra- 
tions was  an  economic  absurdity,  and  that  an  English 
publishing  house  could,  in  any  case,  through  an  Amer- 
ican partner,  retain  control  of  the  American  market. 
During  the  same  week  a  bill  was  drafted  by  C.  A. 
Bristed,  representing  more  particularly  the  views  of 
the  authors  in  the  Copyright  Association,  which  pro- 
vided simply  that  all  rights  secured  to  citizens  of  the 
United  States  by  existing  copyright  laws  be  hereby 
secured  to  the  citizens  and  subjects  of  every  country 
the  government  of  which  secures  reciprocal  rights 
to  the  citizens  of  the  United  States.  A  few  weeks 
later,  at  a  meeting  of  publishers  and  others,  held  in 
Philadelphia,  resolutions  were  adopted  (which  will 
be  referred  to  later)  opposing  any  measure  of  inter- 
national copyright. 

These  four  reports  were  submitted  to  the  Library 
Committee,  together  with  one  or  two  individual  sug- 
gestions, of  which  the  most  noteworthy  were  those 
of  Harper  &  Bros,  and  of  Mr.  J.  P.  Morton,  a  book- 
seller of  Louisville.  Messrs.  Harper,  in  a  letter  pre- 
sented by  their  counsel,  took  the  broad  ground  that 
"  any  measure  of  international  copyright  was  objec- 
tionable because  it  would  add  to  the  price  of  books, 
and  thus  interfere  with  the  education  of  the  people." 
It  is  to  be  remarked,  in  regard  to  this  consideration, 
that  it  is  equally  forcible  against  any  copyright 
whatever.     As  Thomas  Hood  says  :  "  Cheap  bread 


LITERARY   PROPERTY.  387 

is  as  desirable  and  necessary  as  cheap  books,  but  one 
does  not  on  that  ground  appropriate  the  farmer's 
wheat  stack."  Mr.  Morton  was  in  favor  of  an 
arrangement  that  should  give  to  any  dealer  the 
privilege  of  reprinting  a  foreign  work,  provided  he 
would  contract  to  pay  to  the  author  or  his  represent- 
ative ten  per  cent,  of  the  wholesale  price.  This  sug- 
gestion was  afterward  incorporated  in  what  was 
known  as  the  Sherman  bill.  In  view  of  the  wide 
diversity  of  the  plans  and  suggestions  presented  to 
this  committee,  there  was  certainly  some  ground 
for  the  statement  made  in  his  report  by  the  chair- 
man, Senator  Lot  M.  Morrill,  that  "  there  was  no 
unanimity  of  opinion  among  those  interested  in  the 
measure."  He  maintained  further,  in  acceptance  of 
the  positions  taken  by  the  Philadelphians,  "  that  an 
international  copyright  was  not  called  for  by  reasons 
of  general  equity  or  of  constitutional  law  ;  that  the 
adoption  of  any  plan  which  had  been  proposed 
would  be  of  very  doubtful  advantage  to  American 
authors,  and  would  not  only  be  an  unquestionable 
and  permanent  injury  to  the  interests  engaged  in 
the  manufacture  of  books,  but  a  hinderance  to  the 
diffusion  of  knowledge  among  the  people,  and  to 
the  cause  of  American  education." 

The  commission  appointed  by  the  British  govern- 
ment in  1876,  to  make  inquiry  in  regard  to  the  laws 
and  regulations  relating  to  home,  colonial,  and  inter- 
national copyright,  made  reference  in  the  following 
terms  to  the  present  relations  of  British  authors 
with  this  country :  "  It  has  been  suggested  to  us 
that  this  countiy  would  be  justified  in  taking  steps 


388  THE   QUESTION   OF   COPYRIGHT. 

of  a  retaliatory  character  with  a  view  of  enforcing, 
incidentally,  that  protection  from  the  United  States 
which  we  accord  to  them.  This  might  be  done  by 
withdrawing  from  the  Americans  the  privilege  of 
copyright  on  first  publication  in  this  country.  We 
have,  however,  come  to  the  conclusion  that,  on  the 
highest  public  grounds  of  policy  and  expediency,  it 
is  advisable  that  our  laws  should  be  based  on  correct 
principles,  without  respect  to  the  opinions  or  the 
policy  of  other  nations.  We  admit  the  propriety  of 
protecting  copyright,  and  it  appears  to  us  that  the 
principle  of  copyright,  if  admitted,  is  of  universal 
application.  We  therefore  recommend  that  this 
country  should  pursue  the  policy  of  recognizing  the 
rights  of  authors,  irrespective  of  nationality."  Here 
is  a  claim  for  a  far-seeing,  statesman-like  policy, 
based  upon  principles  of  wide  equity,  and  planned 
for  the  permanent  advantage  of  literature  in  Eng- 
land and  throughout  the  world. 

It  is  mortifying  for  Americans,  possessed  of  any 
sensitiveness,  not  only  for  their  national  honor,  but 
for  their  national  reputation  for  common  sense,  to  see 
quoted  abroad  as  "  the  American  view  of  the  copy- 
right question"  such  utterances  as  the  resolutions 
adopted  in  the  meeting  previously  referred  to,  held  in 
Philadelphia  in  January,  1872.  The  meeting  was  pre- 
sided over  by  Henry  Carey  Baird,  and  may  be  con- 
sidered as  having  represented  the  opinions  of  the 
Pennsylvania  protectionists — opinions  which,  while 
not,  as  I  believe,  shared  by  the  majority  of  our  com- 
munity, do  still  succeed  in  shaping  the  economic  pol- 
icy of  the  nation.     The  resolutions  are  as  follows: 


LITERARY   PROPERTY.  389 

I.  That  thought,  unless  expressed,  is  the  property  of 
the  thinker ;  when  given  to  the  world,  it  is,  as  light, 
free  to  all.  2.  As  property,  it  can  only  demand  the 
protection  of  the  municipal  law  of  the  country  to 
which  the  thinker  is  subject.  3.  The  author,  of  any 
country,  by  becoming  a  citizen  of  this,  and  assuming 
and  performing  the  duties  thereof,  can  have  the 
same  protection  that  an  American  author  has.  4. 
The  trading  of  privileges  to  foreign  authors  for 
privileges  to  be  granted  to  Americans  is  not  just, 
because  the  interests  of  others  than  themselves  may 
be  sacrificed  thereby.  5.  Because  the  good  of  the 
whole  people,  and  the  safety  of  republican  institu- 
tions, demand  that  books  shall  not  be  made  costly 
for  the  multitude  by  giving  the  power  to  foreign 
authors  to  fix  their  price  here  as  well  as  abroad. 

The  first  proposition  is  certainly  a  pretty  safe 
one,  as  thought,  until  expressed,  can  hardly  incur 
any  serious  risk  of  being  appropriated. 

The  second  proposition,  while  admitting  for  a 
literary  creation  its  claim  to  be  classed  as  property, 
denies  to  it  the  rights  which  are  held  to  pertain  to 
all  property  in  which  the  owner's  title  is  absolute. 
The  property  which  would,  if  it  still  existed,  most 
nearly  approximate  to  such  a  definition  as  above  giv- 
en, is  that  in  slaves.  Twenty-five  years  ago  the  title 
to  an  African  chattel,  who  was  worth,  in  Charleston, 
say  $1,000,  became  valueless  if  said  chattel  succeeded 
in  slipping  across  to  Bermuda.  It  is  this  ephemeral 
kind  of  ownership,  limited  by  accidental  political 
boundaries,  that  the  Philadelphia  protectionists  are 
willing  to  concede  to  the  creation  of  a  man's  mind, 


390  THE   QUESTION  OF   COPYRIGHT. 

the  productions  into  which  have  been  absorbed  the 
gray  matter  of  his  brain,  and,  possibly,  the  best  part 
of  his  life. 

In  regard  to  the  third  proposition,  it  may  be  said 
that  the  protection  accorded  to  American  authors 
is,  according  to  their  testimony,  most  unremuner- 
ative  and  unsatisfactory ;  and  it  is  difficult  to  under- 
stand why  an  European  author,  who  has  before 
him,  under  international  conventions,  the  markets 
of  his  native  country  and  of  all  the  civilized  world, 
excepting  belated  America,  should  be  expected  to 
give  up  these  for  the  poor  half  loaf  accorded  to  his 
American  brother. 

The  fourth  proposition  strikes  one  as  rather  a 
remarkable  protest  to  come  from  Philadelphia.  Here 
are  a  number  of  American  producers  (of  literature) 
who  ask  for  a  very  moderate  amount  of  protection 
(if  that  is  the  proper  term  to  apply  to  a  mere  recog- 
nition of  property  rights)  for  their  productions  ;  but 
the  Philadelphians,  filled  with  an  unwonted  zeal  for 
the  welfare  of  the  community  at  large,  say :  "No; 
this  won't  do  ;  prices  would  be  higher  and  consumers 
would  suffer." 

The  last  proposition  appears  to  show  that  this 
want  of  practical  sympathy  with  the  producers  of 
literature  is  not  due  to  any  lack  of  interest  in  the 
public  enlightenment.  It  may  well,  however,  be 
doubted  whether  education  as  a  whole,  including 
the  important  branch  of  ethics,  is  advanced  by 
permitting  our  citizens  to  appropriate,  without  com- 
pensation, the  labor  of  others,  while  through  such 
appropriation  they  are  also  assisting  to  deprive  our 


LITERARY   PROPERTY.  39 1 

own  authors  of  a  portion  of  their  rightful  earnings. 
But,  apart  from  that,  the  proposition,  as  stated, 
proves  too  much.  It  is  fatal  to  all  copyright  and 
to  all  patent  right.  If  the  good  of  the  community 
and  the  safety  of  republican  institutions  demand 
that,  in  order  to  make  books  cheap,  the  claim  to  a 
compensation  for  the  authors  must  be  denied,  why 
should  we  continue  to  pay  copyrights  to  Lowell  and 
Whittier,  or  to  the  families  of  Longfellow  and 
Irving?  The  so-called  owners  of  these  copyrights 
actually  have  it  in  their  power,  in  -operation  with 
their  publishers,  to  "  fix  the  prices  "  of  their  books 
in  this  market.  This  monopoly  must,  indeed,  be 
pernicious  and  dangerous  when  it  arouses  Pennsyl- 
vania to  come  to  the  rescue  of  oppressed  and 
impoverished  consumers  against  the  exactions  of 
greedy  producers,  and  to  raise  the  cry  of  "  free 
books  for  free  men." 

Early  in  1880  a  draft  of  an  international  copy- 
right  treaty  was  prepared,  which  received  the  sup- 
port of  nearly  all  the  publishers,  including  Messrs. 
Harper,  who  had  found  reasons  since  1872  to  modify 
their  views,  and  of  some  authors.  The  latter, 
together  with  the  publishing  firms  which  had  previ- 
ously been  most  active  in  behalf  of  a  measure,  gave 
their  assent  to  this,  not  because  they  thought  its 
provisions  on  the  whole  wise  or  desirable,  but 
because  the  middle  ground  that  it  took  between 
an  author's  bill,  without  any  restrictions,  and  the 
extreme  "  manufacturing  view  "  of  the  Philadel- 
phians  seemed  most  likely  to  secure  the  general 
support  required ;    and  it  was    believed  that,    if   a 


392  THE   QUESTION   OF   COPYRIGHT. 

copyright  could  once  be  inaugurated,  it  ought  not 
to  prove  difficult  to  amend  it  in  the  direction  of 
greater  liberty  and  greater  simplicity. 

The  proposed  treaty  provided  that  copyright 
should  be  accorded  reciprocally  to  English  and 
American  works,  the  foreign  editions  of  which  should 
be  issued  not  later  than  three  months  after  the 
first  publication  ;  the  entries  for  copyright  should, 
however,  by  means  of  title-pages,  be  made  simultane- 
ously in  the  home  and  the  foreign  offices  of  registry, 
and  the  several  conditions  applicable  to  the  national 
copyright  enactments  should  be  duly  complied  with. 
It  was  further  provided,  in  order  to  secure  the  pro- 
tection of  the  American  copyrights,  that  the  foreign 
work  must  be  printed  and  bound  in  this  country,  the 
privilege  being  accorded  of  importing  stereotype 
plates  and  electrotypes  of  the  illustrations.  It  is  to 
be  noted  that  this  last  clause  indicates  an  advance  in 
liberality  of  opinion  since  the  suggestions  of  1872 
and  of  earlier  dates,  in  nearly  all  of  which  it  was 
insisted  that  the  foreign  work  must  be  entirely  re- 
manufactured  in  this  country.  The  authors  and 
publishers  who  gave  their  signatures,  under  protest, 
to  the  petition  in  behalf  of  this  treaty,  objected  prin- 
cipally to  the  brief  term  allowed  for  the  preparation 
and  issue  of  the  reprinted  editions.  Many  of  the 
authors  believed  that  there  should  be  no  limit  of 
time,  while  some  of  the  leading  publishing  houses 
insisted  that  the  limit  ought  to  be  twelve  months, 
and  should  in  no  case  exceed  six  months.  Attention 
was  especially  called  to  the  fact  that  such  a  limita- 
tion as  three  months,  while  a  disadvantage   to  all 


LITERARY   PROPERTY.  393 

authors  whose  reputations  were  not  sufficiently 
assured  to  enable  them  to  make  advance  agree- 
ments for  their  works,  would  be  especially  detri- 
mental to  American  writers,  whose  books  were  rarely 
undertaken  by  English  or  continental  reprinters  until 
they  had  secured  a  satisfactory  home  reputation. 
Chas.  Scribner,  Henry  Holt  &  Co.,  and  Roberts 
Bros,  united  with  G.  P.  Putnam's  Sons  in  a  protest 
against  what  seemed  to  them  the  unwise  and  illiberal 
restrictions  of  the  proposed  measure.  These  firms 
did  not,  however,  think  best  to  withhold  their  signa- 
tures from  the  petition  in  behalf  of  the  treaty,  being 
of  opinion  that  even  if  it  might  not  prove  practi- 
cable to  amend  this  before  it  was  put  into  effect, 
amendments  could  at  a  later  date  be  introduced,  and 
that  in  any  case,  even  a  very  faulty  treaty  would  be 
an  advance  over  the  present  unsatisfactory  and 
iniquitous  state  of  things. 

In  July,  1880,  the  American  members  of  the 
International  Copyright  Committee,  which  had  been 
appointed  by  the  association  for  the  reform  of  the 
law  of  nations,  addressed  to  Mr.  Evarts,  Secretary 
of  State,  a  memorial  in  behalf  of  a  treaty  practically 
identical  with  the  measure  above  specified,  with  the 
exception  of  specifying  no  limit  of  time  for  the  issue 
of  the  reprint. 

In  September,  1880,  Mr.  Lowell,  at  that  time 
minister  in  London,  submitted  to  Earl  Granville 
the  draft  of  a  treaty  based  upon  the  suggestions  of 
American  publishers.  Lord  Granville  advised  Mr. 
Lowell,  in  March,  1881,  that  the  British  govern- 
ment would  be  interested  in  completing  such  treaty, 


394  THE  QUESTION   OF   COPYRIGHT. 

but  that  an  extension  of  the  term  for  republication 
from  three  months  to  six  would  be  considered 
essential,  while  a  term  of  twelve  months  was  thought 
to  be  much  more  equitable. 

In  March,  1881,  the  International  Literary  Asso- 
ciation adopted  the  report  of  a  committee  appointed 
to  examine  the  provisions  of  the  proposed  treaty 
between  the  United  States  and  England.  In  this 
report  the  two  countries  were  congratulated  at  the 
prospect  of  an  agreement  so  important  to  the  authors 
of  each,  and  the  United  States  was  especially  con- 
gratulated upon  the  first  steps  being  taken  to  remove 
from  the  nation  the  opprobrium  of  being  the  only 
people  from  whom  authors  could  not  secure  just 
treatment.  The  provisions  of  the  treaty  calling  for 
remanufacture,  and  the  brief  term  allowed  for  the 
preparation  of  the  reprint,  were,  however,  sharply 
criticised.  In  the  spring  of  1881  Sir  Edward  Thorn- 
ton, the  British  minister  in  Washington,  received 
instructions  from  London  to  proceed  to  the  consid- 
eration of  the  treaty,  provided  the  term  for  reprint 
could  be  extended.  President  Garfield  had  taken  a 
strong  interest  in  the  matter,  an  interest  which  Mr. 
Blaine  was  understood  to  share,  and  it  was  expected 
that  the  treaty  would  be  submitted  to  the  Senate  in 
the  fall  of  1 88 1.  The  death  of  Garfield  and  the 
change  in  the  State  Department  appear  to  have 
checked  the  progress  of  the  business,  and  there  has 
since,  to  the  date  of  this  writing  (June,  1883),  been 
no  evidence  of  any  interest  in  it  on  the  part  of  the 
present  administration. 

It    appears  as    if  further    consideration  for    the 


LITERARY   PROPERTY.  395 

treaty  can  be  secured  only  on  the  strength  of  a  popu- 
lar demand,  based  on  a  correct  understanding  of  the 
rights  and  just  requirements  of  authors,  American 
and  foreign,  and  on  an  intelligent  appreciation  of 
the  unworthy  position  toward  the  question  at  pres- 
ent occupied  by  the  United  States,  which  alone 
among  civilized  nations  has  failed  to  give  full  recog- 
nition to  literature  as  property. 

This  brief  historical  sketch  of  the  various  national 
and  international  enactments  relating  to  copyrights, 
indicates  also  the  lines  along  which  were  developed 
the  ideas  relating  to  authors'  rights.  The  concep- 
tion of  property  in  literary  ideas  is  of  necessity 
closely  bound  up  with  the  conception  of  property  in 
material  things.  In  tracing  through  successive  cent- 
uries the  history  of  this  last,  we  find  a  continued 
development  in  its  range  and  scope  corresponding 
to  the  development  in  civilization  itself,  of  which  so 
large  a  factor  is  the  recognition  of  human  rights  and 
reciprocal  human  duties. 

It  would  be  beyond  the  scope  of  this  paper 
to  go  into  the  history  of  the  property  idea.  It 
is  sufficient  to  point  out  that  what  a  man  owned 
appears  in  the  first  place  to  have  been  that 
which  he  had  "  occupied,"  and  could  defend  with 
his  own  strong  arm.  Later,  it  became  what  his 
tribe  could  defend  for  him.  With  the  organization 
of  tribes  into  nations,  that  which  a  man  had  oc- 
cupied, shaped,  or  created  was  recognized  as  his 
throughout  the  territory  of  his  nation. 

The  idea  of  protection  by  national  law  was 
widened  into  an  imperial  conception  by  the  Roman 


3g6  THE   QUESTION   OF   COPYRIGHT. 

control  of  the  imperial  world.  With  the  shattering 
of  the  empire,  the  former  local  views  of  property 
rights  (or,  at  least,  of  property  possibilities)  again 
obtained,  and  were  only  gradually  widened  and  ex- 
tended by  the  growth,  through  commerce,  of  inter- 
national relations — a  growth  much  retarded  by  feudal 
claims  and  feudal  strifes.  The  robber-barons  of  the 
Rhine,  by  their  crushing  extortions  from  traders,  did 
what  was  in  their  power  to  stifle  commerce,  and 
unwittingly  laid  the  foundations  of  the  so-called 
protective  system  ;  and  later,  the  little  trading  com- 
munities, still  hampered  by  the  baronial  standard, 
built  up  at  their  gates  barriers  against  the  admis- 
sion of  various  products  from  the  outer  world,  the 
free  purchase  of  which  by  their  own  citizens  would, 
as  they  imagined,  in  some  manner  work  to  their  im- 
poverishment. Barons  and  traders  were  alike  fight- 
ing against  the  international  idea  of  property,  under 
which  that  which  a  man  has  created,  or  legitimately 
occupied,  is  his  own,  and  he  is  free  to  exchange  it  ; 
that  is,  entitled  to  be  protected  in  the  free  exchange 
of  it,  throughout  the  civilized  world,  for  any  other 
commodities  or  products.  A  man's  ownership  of  a 
thing  cannot  be  called  complete  if  it  is  to  be  ham- 
pered with  restrictions  as  to  the  place  where,  or  the 
objects  for  which,  he  can  exchange  it. 

To  that  extent  the  idea  of  international  copyright 
is  bound  up  with  the  idea  of  free  trade.  They  both 
claim  a  higher  and  wider  recognition  for  the  rights  of 
property,  taking  the  position  that  what  a  man  has 
created  by  his  own  labor  is  his  own,  to  do  what  he 
will  with,  subject  only  to  his  proportionate  contri- 


LITERARY    PROPERTY.  397 

bution  to  the  cost  of  carrying  on  the  organization  of 
the  community  under  the  protection  of  which  his 
labor  has  been  accomplished,  and  to  the  single  limi- 
tation that  the  results  of  his  labor  shall  not  be  used 
to  the  detriment  of  his  fellow-men.  The  opponents 
of  free  trade  would  limit  the  right  of  the  producer 
to  exchange  his  products,  saying,  as  to  certain  com- 
modities, that  he  shall  not  be  permitted  to  receive 
them  at  all,  and,  as  to  others,  that  he  must  give 
of  his  own  product,  in  addition  to  the  open  market 
equivalent  of  the  article  desired,  an  additional  quan- 
tity as  a  bonus  to  some  of  his  favored  fellow-citizens. 
The  opponents  of  international  copyright  assert  that 
the  producers  of  literary  works  should  be  at  liberty 
to  sell  them  only  within  certain  political  bounda- 
ries. The  necessary  deduction  from  such  a  position 
is,  that  the  extent  of  an  author's  remuneration  is 
made  to  depend,  not  upon  the  number  of  readers 
whom  he  had  benefited,  but  upon  the  extent  of  the 
political  boundaries  of  the  country  in  which  he  hap- 
pened to  be  a  resident. 

If  the  recognition  of  the  fact  that  aliens  and 
citizens  of  foreign  states  (the  "  barbarians-"  of  the 
Greeks  and  Romans)  possessed  rights  deserving 
of  respect,  had  depended  solely  upon  the  develop- 
ment of  international  ethics  and  humanitarian  prin- 
ciples, its  growth  would  have  been  still  slower  than 
has  been  the  case.  That  growth  has,  however, 
been  powerfully  furthered  by  utilitarian  teachings. 
When  men  came  to  understand  that  their  own  wel- 
fare was  not  hampered,  but  furthered,  by  the  pros- 
perity of  their  neighbors,  reciprocity  took  the  place 


39§  THE   QUESTION   OF  COPYRIGHT. 

of  reprisals,  and  commercial  exchanges  succeeded 
Chinese  walls. 

The  same  result,  in  Europe  at  least,  followed  the 
understanding  of  the  fact  that  the  development  of 
national  literature,  and  the  adequate  compensation 
of  national  authors,  is  largely  dependent  upon  the 
proper  recognition  of  the  property  rights  of  foreign 
authors:  this  understanding,  added  to  the  widening 
conceptions  of  human  rights,  irrespective  of  bound- 
aries, and  the  increasing  assent  to  the  claim  that  the 
producer  is  entitled  to  compensation  proportioned 
to  the  extent  of  the  service  rendered  by  his  pro- 
duction, and  to  the  number  of  his  fellow-men  bene- 
fited by  this,  have  secured  international  copyright 
arrangements  on  the  part  of  all  countries  where 
literature  exists,  excepting  only  the  great  republic, 
which  was  founded  on  the  "  rights  of  men." 

The  question  of  the  proper  duration  of  literary 
property  has  called  forth  a  long  series  of  discussions 
and  arguments,  the  more  important  of  which  are 
referred  to  in  Mr.  Macleod's  paper  in  this  work. 
Authors  have  almost  from  the  beginning  taken  the 
position  that  literary  property  is  the  highest  kind  of 
property  in  existence  ;  that  no  right  or  title  to  a 
thing  can  be  so  perfect  as  that  which  is  created  by 
a  man's  own  labor  and  invention  ;  that  the  exclusive 
right  of  a  man  to  his  literary  productions  and  to  the 
use  of  them  for  his  own  profit  is  as  entire  and  per- 
fect as  the  faculties  employed  and  labor  bestowed 
are  entirely  and  perfectly  his  own.  "  If  this  claim 
be  accepted,"  says  Noah  Webster,  "  it  is  difficult  to 
understand  on   what  logical  principle  a  legislature 


LITERARY   PROPERTY.  399 

or  court  can  determine  that  an  author  enjoys  only 
a  temporary  property  in  his  own  productions.  If  a 
man's  right  to  his  own  property  in  writing  is  as  per- 
fect as  to  the  productions  of  his  farm  or  his  shop, 
how  can  the  former  be  abridged  or  limited  while 
the  latter  is  held  without  limitations?  Why  do  the 
productions  of  manual  labor  reach  higher  in  the 
scale  of  rights  of  property  than  the  productions  of 
the  intellect  ?  " 

It  is  the  case,  however,  that,  notwithstanding  the 
logic  of  this  position,  no  nation  to-day  accords 
copyright  for  more  than  a  limited  term,  of  which 
the  longest  is  eighty  years.  In  the  only  countries 
in  which  the  experiment  of  perpetual  copyright  has 
been  attempted — Holland,  Belgium,  Sweden  and 
Denmark — a  return  was  speedily  made  to  protection 
for  a  term  of  years.  There  appears  to  have  been 
always  apprehension  on  the  part  of  the  public  and 
the  governments  lest  an  indefinite  copyright  might 
result  in  the  accumulation  in  the  hands  of  traders 
of  "  literary  monopolies,"  under  which  extortionate 
prices  would  be  demanded  from  successive  genera- 
tions for  the  highest  and  most  necessary  produc- 
tions of  national  literature.  It  is  hardly  practicable 
to  estimate  how  well  founded  such  apprehensions 
may  be,  as  no  opportunities  have  as  yet  existed  for 
the  development  of  such  monopolies.  It  seems 
probable  that  accumulations  of  literary  property 
would,  as  in  the  case  of  other  property,  be  so  far 
regulated  by  the  laws  of  supply  and  demand  as  not 
to  become  detrimental  to  the  interests  of  the  com- 
munity.    If  a  popular  demand  existed  or  could  be 


4-00  THE   QUESTION    OF   COPYRIGHT. 

created  for  an  article,  it  would  doubtless  be  pro- 
duced and  supplied  at  the  lowest  price  that  would 
secure  the  widest  popular  sale.  If  the  article  was 
suited  but  for  a  limited  demand,  the  price,  to  re- 
munerate the  producer  and  owner,  would  be  pro- 
portionately higher.  A  further  consideration  ob- 
tains in  connection  with  literary  property  which  has 
also  influenced  the  framing  of  copyright  enactments. 
The  possibility  exists  that  the  descendants  of  an 
author,  who  have  become  by  inheritance  the  owners 
of  his  copyrights,  might,  for  one  cause  or  another, 
desire  to  withdraw  the  works  from  circulation.  A 
case  could  even  occur  in  which  parties  desiring  to 
suppress  works  might  possess  themselves  of  the 
copyrights  for  this  purpose.  The  heirs  of  Calvin, 
if  converted  to  Romanism,  would  very  naturally 
have  desired  to  suppress  the  circulation  of  the  In- 
stitutes;  and  the  history  of  literature  affords,  of 
course,  hundreds  of  instances  in  which  there  would 
have  been  sufficient  motive  for  the  suppressing,  by 
any  means  which  the  nature  of  copyrights  might 
render  possible,  works  that  had  been  once  given  to 
the  world.  It  will,  doubtless,  be  admitted  that,  in 
this  class  of  cases,  the  development  of  literature  and 
freedom  of  thought  would  alike  demand  the  exercise 
of  the  authority  of  the  government  on  behalf  of  the 
community,  to  insure  the  continued  existence  of 
works  in  which  the  community  possessed  any  con- 
tinued interest. 

The  efforts  in  this  country  in  behalf  of  inter- 
national copyright  have  been  always  more  or  less 
hampered  by  the  question  being  confused  with  that 


LITERARY   PROPERTY.  401 

of  a  protective  tariff.  The  strongest  opposition  to 
a  copyright  measure  has  uniformly  come  from  pro- 
tectionists. 

Richard  Grant  White  said,  in  1868  :  "The  refusal 
of  copyright  in  the  United  States  to  British  authors 
is,  in  fact,  though  not  always  so  avowed,  a  part  of 
the  American  protective  system.  With  free  trade 
we  shall  have  a  just  international  copyright." 

It  would  be  difficult,  however,  for  protectionists 
to  show  logical  grounds  for  their  position.  Ameri- 
can authors  are  manufacturers  who  are  simply  ask- 
ing, first,  that  they  shall  not  be  undersold  in  their 
home  market  by  goods  imported  from  abroad  on 
which  no  (ownership)  duty  has  been  paid,  which 
have  been  simply  "  appropriated  ;  "  secondly,  that 
the  government  may  facilitate  their  efforts  to  secure 
compensation  for  such  of  their  own  goods  as  are 
enjoyed  by  foreigners.  These  are  claims  with 
which  a  protectionist  who  is  interested  in  develop- 
ing American  industry  ought  certainly  to  be  in  sym- 
pathy. The  contingency  that  troubles  him,  how- 
ever, is  the  possibility  that,  if  the  English  author  is 
given  the  right  to  sell  his  books  in  this  country, 
the  copies  sold  may  be,  to  a  greater  or  less  extent, 
manufactured  in  England,  and  the  business  of  mak- 
ing these  copies  may  be  lost  to  American  print- 
ers, binders,  and  paper  men.  He  is  much  more 
concerned  for  the  protection  of  the  makers  of  the 
material  casing  of  the  book  than  for  that  of  the 
author  who  created  its  essential  substance. 

It  is  evidently  to  the  advantage  of  the  consumer, 

upon  whose  interest  the  previously  referred  to  Phila- 
26 


402  THE  QUESTION   OF  COPYRIGHT. 

delphia  resolutions  lay  so  much  stress,  that  the  labor 
of  preparing  the  editions  of  his  books  be  econo- 
mized as  much  as  possible.  The  principal  portion  of 
the  cost  of  a  first  edition  of  a  book  is  the  setting 
of  the  type,  together  with,  if  the  work  is  illustrated, 
the  designing  and  engraving  of  the  illustrations.  If 
this  first  cost  of  stereotyping  and  engraving  can  be 
divided  among  several  editions,  say,  one  for  Great 
Britain,  one  for  the  United  States,  and  one  for 
Canada  and  the  other  colonies,  it  is  evident  that  the 
proportion  to  be  charged  to  each  copy  printed  is 
less,  and  that  the  selling  price  per  copy  can  be 
smaller,  than  would  be  the  case  if  this  first  cost  had 
got  to  be  repeated  in  full  for  each  market.  It  is, 
then,  to  the  advantage  of  the  consumer  that,  what- 
ever copyright  arrangement  be  made,  nothing  shall 
stand  in  the  way  of  foreign  stereotypes  and  illus- 
trations being  duplicated  for  use  here  whenever 
the  foreign  edition  is  in  such  shape  as  to  render 
this  duplicating  an  advantage  and  a  saving  in 
cost. 

The  few  protectionists  who  have  expressed  them- 
selves in  favor  of  an  international  copyright  measure, 
and  some  others  who  have  fears  as  to  our  publish- 
ing interest  being  able  to  hold  its  own  against  any 
open  competition,  insist  upon  the  condition  that 
foreign  works,  to  obtain  copyright,  must  be  wholly 
remanufactured  and  republished  in  this  country. 
We  have  shown  how  such  a  condition  would,  in  the 
majority  of  cases,  be  contrary  to  the  interests  of 
the  American  consumer,  while  the  British  author  is 
naturally  opposed  to  it,  because,  in  increasing  ma- 


LITERARY   PROPERTY.  4O3 

terially  the  outlay  to  be  incurred  by  the  American 
publisher  in  the  production  of  his  edition,  it  pro- 
portionately diminishes  the  profits,  or  prospects  of 
profits,  from  which  is  calculated  the  remuneration 
that  can  be  paid  to  the  author. 

The  suggestion,  previously  referred  to,  of  permit- 
ting the  foreign  book  to  be  reprinted  by  all  dealers 
who  would  contract  to  pay  the  author  a  specified 
royalty,  has,  at  first  sight,  something  specious  and 
plausible  about  it.  It  seems  to  be  in  harmony  with 
the  principles  of  freedom  of  trade,  in  which  we  are 
believers.  It  is,  however,  directly  opposed  to  those 
principles.  First,  it  impairs  the  freedom  of  con- 
tract, preventing  the  producer  from  making  such 
arrangements  for  supplying  the  public  as  seem  best 
to  him ;  and,  secondly,  it  undertakes,  by  paternal 
legislation,  to  fix  the  remuneration  that  shall  be 
given  to  the  producer  for  his  work,  and  to  limit  the 
prices  at  which  this  work  shall  be  furnished  to  the 
consumer.  There  is  no  more  equity  in  the  govern- 
ment's undertaking  this  limitation  of  the  producer 
and  protection  of  the  consumer  in  the  case  of  books, 
than  there  would  be  in  that  of  bread  and  beef. 
Further,  such  an  arrangement  would  be  of  benefit 
to  neither  the  author,  the  public,  nor  the  publishers, 
and  would,  we  believe,  make  of  international  copy- 
right, and  of  any  copyright,  a  confusing  and  futile 
absurdity. 

A  British  author  could  hardly  obtain  much  satis- 
faction from  an  arrangement  which,  while  prevent- 
ing him  from  placing  his  American  business  in  the 
hands  of  a  publishing  house   selected   by  himself, 


404  THE   QUESTION   OF  COPYRIGHT. 

and  of  whose  responsibility  he  could  assure  himself, 
would  throw  open  the  use  of  his  property  to  any 
dealers  who  might  scramble  for  it.  He  could  exer- 
cise no  control  over  the  style,  the  shape,  or  the 
accuracy  of  his  American  editions  ;  could  have  no 
trustworthy  information  as  to  the  number  of  copies 
the  various  editions  contained  ;  and,  if  he  were 
tenacious  as  to  the  collection  of  the  royalties  to 
which  he  was  entitled,  he  would  be  able  in  many 
cases  to  enforce  his  claims  only  through  innumer- 
able law  suits,  and  would  find  the  expenses  of  the 
collection  exceed  the  receipts. 

The  benefit  to  the  public  would  be  no  more  ap- 
parent. Any  gain  in  the  cheapness  of  the  editions 
produced  would  be  more  than  offset  by  their  un- 
satisfactoriness ;  they  would,  in  the  majority  of 
cases,  be  untrustworthy  as  to  accuracy  or  com- 
pleteness, and  be  hastily  and  flimsily  manufactured. 
A  great  many  enterprises,  also,  desirable  in  them- 
selves, and  that  would  be  of  service  to  the  public, 
no  publisher  could,  under  such  an  arrangement, 
afford  to  undertake  at  all,  as,  if  they  proved  success- 
ful, unscrupulous  neighbors  would,  through  rival 
editions,  reap  the  benefit  *of  his  judgment  and  his 
advertising.  In  fact,  the  business  of  reprinting 
would  fall  largely  into  the  hands  of  irresponsible 
parties,  from  whom  no  copyright  could  be  collected. 
The  arguments  against  a  measure  of  this  kind  are, 
in  short,  the  arguments  in  favor  of  international 
copyright.  A  very  conclusive  statement  of  the  case 
against  the  equity  or  desirability  from  any  point  of 
view  of  such  an  arrangement  in  regard   to    home 


LITERARY    PROPERTY.  405 

copyright  was  made  before  the  British  commission, 
in  1877,  by  Herbert  Spencer. 

The  recommendation  had  been  made,  for  the  sake 
of  securing  cheap  books  for  the  people,  that  the 
law  should  give  to  all  dealers  the  privilege  of  print- 
ing an  author's  books,  and  should  fix  a  copyright  to 
be  paid  to  the  author  that  should  secure  him  a  "  fair 
profit  for  his  work."  Mr.  Spencer  objected:  1. 
That  this  would  be  a  direct  interference  with  the 
laws  of  trade,  under  which  the  author  had  the  right 
to  make  his  own  bargains.  2.  No  legislature  was 
competent  to  determine  what  was  a  "  fair  rate  of 
profit  "  for  an  author.  3.  No  average  royalty 
could  be  determined  which  could  give  a  fair  recom- 
pense for  the  different  amounts  and  kinds  of  labor 
given  to  the  production  of  different  classes  of  books. 
4.  If  the  legislature  has  the  right  to  fix  the  profits 
of  the  author,  it  has  an  equal  right  to  determine 
that  of  his  associate  in  the  publication,  the  publisher; 
and  if  of  the  publisher,  then  also  of  the  printer, 
binder,  and  paper  maker,  who  all  have  an  interest 
in  the  undertaking.  Such  a  right  of  control  would 
apply  with  equal  force  to  manufacturers  of  other 
articles  of  importance  to  the  community,  and  would 
not  be  in  accordance  with  the  present  theories  of  the 
proper  functions  of  the  government.  5.  If  books 
are  to  be  cheapened  by  such  a  measure,  it  must  be 
at  the  expense  of  some  portion  of  the  profits  now 
going  to  the  authors  and  publishers  ;  the  assumption 
is,  that  book  producers  and  distributers  do  not  un- 
derstand their  business,  but  require  to  be  instructed 
by  the  state  how  to  carry  it  on,  and  that  the  pub- 


406  THE   QUESTION   OF   COPYRIGHT. 

lishing  business  alone  needs  to  have  its  returns 
regulated  by  law.  6.  The  prices  of  the  best  books 
would,  in  many  cases,  instead  of  being  lessened,  be 
higher  than  at  present,  because  the  publishers  would 
require  some  insurance  against  the  risk  of  rival 
editions,  and  because  they  would  make  their  first 
editions  smaller,  and  the  first  cost  would  have  to 
be  divided  among  a  less  number  of  copies.  Such 
reductions  of  prices  as  would  be  made  would  be  on 
the  flimsier  and  more  popular  literature,  and  even 
on  this  could  not  be  lasting.  7.  For  the  enterprises 
of  the  most  lasting  importance  to  the  public,  requir- 
ing considerable  investment  of  time  and  capital,  the 
publishers  require  to  be  assured  of  returns  from  the 
largest  market  possible,  and  without  such  security 
enterprises  of  this  character  could  not  be  undertaken 
at  all.  8.  Open  competition  of  this  kind  would, 
in  the  end,  result  in  crushing  out  the  smaller  pub- 
lishers, and  in  concentrating  the  business  in  the 
hands  of  a  few  houses  whose  purses  had  been  long 
enough  to  carry  them  through  the  long  and  un- 
profitable contests  that  would  certainly  be  the  first 
effect  of  such  legislation. 

All  the  considerations  adduced  by  Mr.  Spencer 
have,  of  course,  equal  force  with  reference  to  open 
international  publishing,  while  they  may  also  be 
included  among  the  arguments  in  behalf  of  inter- 
national copyright. 

It  is  due  to  American  publishers  to  explain  that, 
in  the  absence  of  an  international  copyright,  there 
has  grown  up  among  them  a  custom  of  making  pay- 
ments to  foreign  authors,  which  has  become,  espe- 


LITERARY   PROPERTY.  407 

dally  during  the  last  twenty-five  years,  a  matter  of 
very  considerable  importance.  Some  of  the  English 
authors  who  testified  before  the  British  commission 
stated  that  the  payments  from  the  United  States 
for  their  books  exceeded  their  receipts  in  Great 
Britain.  These  payments  secure,  of  course,  to  the 
American  publisher  no  title  of  any  kind  to  the 
books.  In  some  cases,  they  obtain  for  him  the  use 
of  advance  sheets,  by  means  of  which  he  is  able  to 
get  his  edition  printed  a  week  or  two  in  advance  of 
any  unauthorized  edition  that  might  be  prepared. 
In  many  cases,  however,  payments  have  been  made 
some  time  after  the  publication  of  the  works,  and 
when  there  was  no  longer  even  the  slight  advantage 
of  "  advance  sheets  "  to  be  gained  from  them. 

While  the  authorization  of  the  English  author 
can  convey  no  title  or  means  of  defence  against  the 
interference  of  rival  editions,  the  leading  publishing 
houses  have,  with  very  inconsiderable  exceptions, 
respected  each  other's  arrangements  with  foreign 
authors,  and  the  editions  announced  as  published 
"  by  arrangement  with  the  author,"  and  on  which 
payments  in  lieu  of  copyright  have  been  duly  made, 
have  not  been,  as  a  rule,  interfered  with.  This  un- 
derstanding among  the  publishers  goes  by  the  name 
of  "the  courtesy  of  the  trade."  I  think  it  is  safe  to 
say  that  it  is  to-day  the  exception  for  an  English 
work  of  any  value  to  be  published  by  any  reputable 
house  without  a  fair,  and  often  a  very  liberal,  recog- 
nition being  made  of  the  rights  (in  equity)  of  the 
author.  In  view  of  the  considerable  amount  of 
harsh  language  that  has  been  expended  in  England 


408  THE   QUESTION   OF   COPYRIGHT. 

upon    our   American    publishing    houses,    and   the 
opinion   prevailing  in   England   that  the  wrong  in 
reprinting  is  entirely  one  sided,  it  is  in  order  here  to 
make  the  claim— which  can,  I  believe,  be  fully  sub- 
stantiated— that,  in  respect  to  the  recognition  of  the 
rights  of  authors  unprotected  by  law,  their  record 
has,  in  fact,  during  the  past  twenty-five  years  been 
better  than  that  of  their  English  brethren.     Eng- 
lish publishers   have   become  fully  aroused  to  the 
fact  that  American  literary  material  has  value  and 
availability,  and  each  year  a  larger  amount  of  this 
material  has  had  the  honor  of  being  introduced  to 
the  English  public.     According  to  the  statistics  of 
1878,  ten  per  cent,  of  the  works  issued  in  England 
in  that  year  were  American  reprints.     The  acknowl- 
edgments, however,  of  any  rights  on  the  part  of 
American  authors  have  been  few  and  far  between, 
and  the   payments  but   inconsiderable  in  amount. 
The  leading  English  houses  would  doubtless  very 
much  prefer  to  follow  the  American  practice  of  pay- 
ing for  their  reprinted  material,  but  they  have  not 
succeeded  in  establishing  any  general  understanding 
similar  to  our  American  "  courtesy  of  the  trade," 
and  books  that  have  been  paid  for  by  one  house  are, 
in  a  large   number  of   cases,  promptly  reissued  in 
cheaper  rival  editions  by  other  houses.     It  is  very 
evident  that,  in  the  face  of  open  and  unscrupulous 
competition,  continued  or  considerable  payments  to 
authors  are  difficult  to  provide  for;  and  the  more 
credit  is  due  to  those  firms  who  have,  in  the  face  of 
this  difficulty,  kept  a  good  record  with  their  Ameri- 
can authors. 


LITERARY    PROPERTY.  409 

One  of  the  not  least  important  results  to  be  looked 
for  from  international  copyright  is  a  more  effective 
co-operation  in  their  work  on  the  part  of  the  pub- 
lishers of  the  two  great  English-speaking  nations. 
They  will  find  their  interest  and  profit  in  working 
together;  and  the  very  great  extension  that  maybe 
expected  in  the  custom  of  a  joint  investment  in  the 
production  of  books  for  both  markets  will  bring  a 
very  material  saving  in  the  first  cost— a  saving  in  the 
advantage  of  which  authors,  publishers,  and  public 
will  alike  share. 

It  seems  probable  that  the  "courtesy  of  the 
trade,"  which  has  made  possible  the  present  rela- 
tions between  American  publishers  and  foreign 
authors,  is  not  going  to  retain  its  effectiveness. 
Within  the  last  few  years  certain  "  libraries  "  and 
"  series  "  have  sprung  into  existence,  which  present 
in  cheaply  printed  pamphlet  form  some  of  the  best 
recent  English  fiction.  The  publishers  of  these 
series  reap  the  advantage  of  the  literary  judgment 
and  foreign  connections  of  the  older  publishing 
houses,  and,  taking  possession  of  material  that  has 
been  carefully  selected  and  liberally  paid  for,  are 
able  to  offer  it  to  the  public  at  prices  which  are  cer- 
tainly low  as  compared  with  those  of  bound  books 
that  have  paid  copyright,  but  are  doubtless  high 
enough  for  literature  that  is  so  cheaply  obtained 
and  so  cheaply  printed.  These  enterprises  have 
been  carried  on  by  concerns  which  have  not  hereto- 
fore dealt  in  standard  fiction,  and  which  are  not 
prepared,  to  respect  the  international  arrangements 
or  trade  courtesies  of  the  older  houses. 


4-IO  THE   QUESTION   OF  COPYRIGHT. 

To  one  of  the  "  cheap  series  "  the  above  remarks 
do  not  apply.  The  "  Franklin  Square  Library"  is 
published  by  a  house  which  makes  a  practice  of 
paying  for  its  English  literary  material,  and  which 
lays  great  stress  upon  "  the  courtesy  of  the  trade." 
It  is  generally  understood  that  this  series  was 
planned,  not  so  much  as  a  publishing  investment, 
as  for  purposes  of  self-defence-,  and  that  it  would  in 
all  probability  not  be  continued  after  the  necessity 
for  self-defence  had  passed  by.  A  good  many  of  its 
numbers  include  works  for  which  the  usual  English 
payments  have  been  made,  and  it  is  probable  that, 
in  this  shape,  books  so  paid  for  cannot  secure 
a  remunerative  sale.  It  seems  safe  to  conclude, 
therefore,  that  their  publication  is  not,  in  the  literal 
sense  of  the  term,  a  business  investment,  and  that 
the  undertaking  was  not  planned  to  be  permanent. 

A  very  considerable  business  in  cheap  reprints 
has  also  sprung  up  in  Canada,  from  which  point  are 
circulated  throughout  the  western  states  cheap  edi- 
tions of  English  works,  for  the  "advance  sheets" 
and  "  American  market  "  of  which  United  States 
publishers  have  paid  liberal  prices.  Some  enterpris- 
ing Canadian  dealers  have  also  taken  advantage  of 
the  present  confusion  between  the  United  States 
postal  and  customs  regulations  to  build  up  a  trade 
by  supplying  through  the  mails  reprints  of  American 
copyright  tvorks,  in  editions  which,  being  flimsily 
printed  and  free  of  charge  for  copyright,  can  be 
sold  at  very  moderate  prices  indeed. 

It  is  very  evident  that,  in  the  face  of  competition 
of  this  kind,  the  payments  by  American  publishers 


LITERARY   PROPERTY.  411 

to  foreign  writers  of  fiction  must  be  materially 
diminished.  These  pamphlet  series  have,  however, 
done  a  most  important  service  in  pointing  out  the 
absurdity  of  the  present  condition  of  literary  prop- 
erty, and  in  emphasizing  the  need  of  an  inter- 
national copyright  law.  In  connection  with  the 
change  in  the  conditions  of  book  manufacturing 
before  alluded  to,  they  may  be  credited  as  having 
influenced  a  material  modification  of  opinion  on  the 
part  of  certain  publishers  who  have  in  years  past 
opposed  an  international  copyright  as  either  inex- 
pedient or  unnecessary,  but  who  are  now  quoted  as 
ready  to  give  their  support  to  any  practicable  and 
equitable  measure  that  may  be  proposed. 

We  may,  I  trust,  be  able,  at  no  very  distant 
period,  to  look  back  upon,  as  exploded  fallacies  of 
an  antiquated  barbarism,  the  two  beliefs,  that  the 
material  prosperity  of  a  community  can  be  assured 
by  surrounding  it  with  Chinese  walls  of  restriction 
to  prevent  it  from  purchasing  in  exchange  for  its 
own  product  its  neighbor's  goods,  and  that  its 
moral  and  mental  development  can  be  furthered  by 
the  free  exercise  of  the  privilege  of  appropriating 
its  neighbor's  books.1 

June,  1884. 

1  For  the  account  of  the  realization  of  these  prophecies,  at  least  in 
part,  seven  years  later,  the  reader  is  referred  to  a  subsequent  chapter 
in  this  volume,  in  which  will  be  found  the  text  of  the  International 
Copyright  Bill  of  1891. 


XXII. 

DEVELOPMENT   OF   STATUTORY   COPY- 
RIGHT  IN    ENGLAND. 

By  R.  R.  Bowker. 

The  statute  of  Anne,  the  foundation  of  the  pres- 
ent copyright  system,  which  took  effect  April  10, 
1710,  gave  the  author  of  works  then  existing,  or  his 
assigns,  the  sole  right  of  printing  for  twenty-one 
years  from  that  date  and  no  longer ;  of  works  not 
printed,  for  fourteen  years  and  no  longer,  except  in 
case  he  were  alive  at  the  expiration  of  that  term, 
when  he  could  have  the  privilege  prolonged  for 
another  fourteen  years.  Penalties  were  provided, 
which  could  not  be  exacted  unless  the  books  were 
registered  with  the  Stationers'  Company,  and  which 
must  be  sued  for  within  three  months  after  the  of- 
fence. If  too  high  prices  were  charged,  the  queen's 
officers  might  order  them  lowered.  A  book  could 
not  be  imported  without  written  consent  of  the 
owner  of  the  copyright.  The  number  of  deposit 
copies  was  increased  to  nine.  The  act  was  not  to 
prejudice  any  previous  rights  of  the  universities  and 
others. 

This  act  did  not  touch  the  question  of  rights  at 
common  law,  and  soon  after  its  statutory  term  of 
protection   on  previously  printed  books  expired,  in 


DEVELOPMENT   OF  COPYRIGHT  IN   ENGLAND.  413 

1 73 1,  lawsuits  began.  The  first  was  that  of  Eyre 
vs.  Walker,  in  which  Sir  Joseph  Jekyll  granted,  in 
1735,  an  injunction  as  to  The  Whole  Duty  of  Man, 
which  had  been  first  published  in  1657,  or  seventy- 
eight  years  before.  In  this  and  several  other  cases 
the  Court  of  Chancery  issued  injunctions  on  the 
theory  that  the  legal  right  was  unquestioned.  But 
in  1769  the  famous  case  of  Millar  vs.  Taylor,  as  to 
the  copyright  of  Thomson's  Seasons,  brought  direct- 
ly before  the  Court  of  King's  Bench  the  question 
whether  rights  at  common  law  still  existed,  aside 
from  the  statute  and  its  period  of  protection.  In 
this  case  Lord  Mansfield  and  two  other  judges  held 
that  an  author  had,  at  common  law,  a  perpetual 
copyright,  independent  of  statute,  one  dissenting 
justice  holding  that  there  was  no  such  property  at 
common  law.  In  1774,  in  the  case  of  Donaldsons 
vs.  Beckett,  this  decision  was  appealed  from,  and 
the  issue  was  carried  to  the  highest  tribunal,  the 
House  of  Lords. 

The  House  of  Lords  propounded  five  questions 
to  the  judges.  These,  with  the  replies,1  were  as  fol- 
lows : 

I.  Whether,  at  common  law,  an  author  of  any  book  or  literary  com- 
position had  the  sole  right  of  first  printing  and  publishing  the  same 
for  sale;  and  might  bring  an  action  against  any  person  who  printed, 
published,  and  sold  the  same  without  his  consent  ?  Yes,  10  to  1 
that  he  had  the  sole  right,  etc.,  and  8  to  3  that  he  might  bring  the 
action. 

1  The  votes  on  these  decisions  are  given  differently  in  the  several 
copyright  authorities.  These  figures  are  corrected  from  4  Burrow's 
Reports,  2408,  the  leading  English  parliamentary  reports,  and  are 
probably  right. 


4H  THE   QUESTION   OF   COPYRIGHT. 

II.  If  the  author  had  such  right  originally,  did  the  law  take  it 
away,  upon  his  printing  and  publishing  such  book  or  literary  com- 
position ;  and  might  any  person  afterward  reprint  and  sell,  for  his 
own  benefit,  such  book  or  literary  composition  against  the  will  of  the 
author  ?     No,  7  to  4. 

III.  If  such  action  would  have  lain  at  common  law,  is  it  taken 
away  by  the  statute  of  8  Anne  ?  And  is  an  author,  by  the  said 
statute,  precluded  from  every  remedy,  except  on  the  foundation  of 
the  said  statute  and  on  the  terms  and  conditions  prescribed  thereby  ? 
Yes,  6  to  5. 

IV.  Whether  the  author  of  any  literary  composition  and  his  as- 
signs had  the  sole  right  of  printing  and  publishing  the  same  in  per- 
petuity, by  the  common  law?     Yes,  7  to  4. 

V.  Whether  this  right  is  any  way  impeached,  restrained,  or  taken 
away  by  the  statute  8  Anne  ?    Yes,  6  to  5. 

These  decisions,  that  there  was  perpetual  copy- 
right at  common  law,  which  was  not  lost  by  pub- 
lication, but  that  the  statute  of  Anne  took  away 
that  right  and  confined  remedies  to  the  statutory 
provisions,  were  directly  contrary  to  the  previous 
decrees  of  the  courts,  and  on  a  motion  seconded  by 
the  Lord  Chancellor,  the  House  of  Lords,  22  to  11, 
reversed  the  decree  in  the  case  at  issue.  This  con- 
struction by  the  Lords,  in  the  case  of  Donaldsons 
vs.  Beckett,  of  the  statute  of  Anne,  has  practically 
"  laid  down  the  law  "  for  England  and  America  ever 
since. 

Two  protests  against  this  action  deserve  note. 
The  first,  that  of  the  universities,  was  met  by  an 
act  of  1775,  which  granted  to  the  English  and 
Scotch  universities  and  to  the  colleges  of  Eton, 
Westminster,  and  Winchester  (Dublin  was  added 
in  1 801)  perpetual  copyright  in  works  bequeathed 
to  and   printed   by  them.     The  other,  that  of  the 


DEVELOPMENT   OF   COPYRIGHT  IN  ENGLAND.   415 

booksellers,  presented  to  the  Commons  February 
28,  1774,  set  forth  that  the  petitioners  had  invested 
large  sums  in  the  belief  of  perpetuity  of  copyright, 
but  a  bill  for  their  relief  was  rejected.  In  1801  an  act 
was  passed  authorizing  suits  for  damages  at  com- 
mon law,  as  well  as  penalties  under  statute  during 
the  period  of  protection  of  the  statute,  the  need  for 
such  a  law  having  been  shown  in  the  case  of  Beck- 
ford  vs.  Hood,  wherein  the  court  had  to  "stretch  a 
point  "  to  protect  the  plaintiff's  rights  in  an  anony- 
mous book  which  he  had  not  entered  in  the  Sta- 
tioners' Register.  An  Act  of  18 14  extended  copy- 
right to  twenty-eight  years  and  for  the  remainder 
of  the  life  of  a  surviving  author,  and  relieved  the 
author  of  the  necessity  of  delivering  the  eleven 
library  copies,  except  on  demand.  These  deposit 
copies  were  reduced  to  five  by  the  Act  of  1836. 

In  1841,  under  the  leadership  of  Sergeant  Tal- 
fourd,  a  great  debate  on  copyright,  in  which  Ma- 
caulay  took  a  leading  part  in  favor  of  restricted 
copyright,  was  started  in  the  Commons,  which  re- 
sulted in  the  act  of  1842  (5  and  6  Vict.),  repealing 
the  previous  acts,  and  presenting  a  new  code  of 
copyright.  It  practically  preserved,  however,  the 
restrictions  of  the  statute  of  Anne.  The  copyright 
term  was  made  the  author's  lifetime  and  seven  years 
beyond,  but  in  any  event  at  least  forty-two  years. 
The  Judicial  Committee  of  the  Privy  Council  may 
authorize  publication  of  a  posthumous  work  in  case 
the  proprietor  of  the  copyright  refuse  to  publish. 
Articles  in  periodicals,  etc.,  have  the  same  copy- 
right   term,   but    they  revert   to    the    author   after 


4?6  THE   QUESTION   OF  COPYRIGHT. 

twenty-eight  years.  Subsequent  acts  extend  copy- 
right to  prints  and  like  art  works,  designs  for  manu- 
factures, sculptures,  dramas,  musical  compositions, 
lectures,  for  various  terms  and  under  differing  con- 
ditions. 

The  present  law  of  England  as  to  copyright,  says 
the  Report  of  the  Royal  Copyright  Commission,  in 
a  Blue  Book  of  1878,  "consists  partly  of  the  pro- 
visions of  fourteen  Acts  of  Parliament,  which  relate 
in  whole  or  in  part  to  different  branches  of  the  sub- 
ject, and  partly  of  common  law  principles,  nowhere 
stated  in  any  definite  or  authoritative  way,  but  im- 
plied in  a  considerable  number  of  reported  cases 
scattered  over  the  law  reports."  The  Digest,  by 
Sir  James  Stephen,  appended  to  this  report,  is 
presented  by  the  commission  as  "  a  correct  state- 
ment of  the  law  as  it  stands."  This  Digest  is,  per- 
haps, the  most  valuable  single  contribution  yet 
made  to  the  literature  of  copyright,  but  the  fre- 
quency with  which  such  phrases  occur  as  "  it  is  prob- 
able, but  not  certain,"  "  it  is  uncertain,"  "  probably," 
"  it  seems,"  show  the  state  of  the  law,  "  wholly  des- 
titute of  any  sort  of  arrangement,  incomplete,  often 
obscure,"  as  says  the  report  itself.  The  Digest  is 
accompanied,  in  parallel  columns,  with  alterations 
suggested  by  the  commission,  and  it  is  much  to  be 
regretted  that  their  work  failed  to  reach  the  ex- 
pected result  of  an  Act  of  Parliament.  The  evi- 
dence taken  by  the  commissioners  forms  a  second 
Blue  Book,  also  of  great  value.  A  new  copyright 
law  is  now  under  consideration  in  England. 

It    seems  possible  that,  under  the  precedent  of 


DEVELOPMENT  OF  COPYRIGHT   IN   ENGLAND.    417 

the  acts  of  1775  and  1801,  the  common  law  rights, 
practically  taken  away  by  the  statute  of  Anne,  could 
be  restored  by  legislation.  Its  restrictions  have  not 
only  ruled  the  practice  of  England  ever  since,  but 
they  were  embodied  in  the  Constitution  of  the 
United  States,  and  have  influenced  alike  our  legis- 
lators and  our  courts. 

December,  1885. 
27 


XXIII. 

CHEAP   BOOKS   AND    GOOD    BOOKS. 

By  Bkander  Matthews. 

Mr.  LOWELL  has  told  us  that  "  there  is  one  thing 
better  than  a  cheap  book,  and  that  is  a  book  honestly- 
come  by."  And  Mr.  Curtis  has  put  the  same  thought 
quite  as  aptly :  "  Cheap  books  are  good  things,  but 
cheapening  the  public  conscience  is  a  very  bad 
thing."  In  these  sayings,  as  in  a  nutshell,  we  have 
the  ethics  of  international  copyright.  But  on  this 
side  of  the  question  Dr.  Van  Dyke,  with  a  felicity 
and  a  force  I  cannot  hope  to  rival,  has  said  all  that 
need  be  said  ;  and  I  hasten  at  once  to  a  considera- 
tion of  the  assertion  that  the  effect  of  the  granting 
of  International  Copyright  will  be  to  raise  the  price 
of  books. 

There  are  still  a  few  who  declare  that  the  People 
must  have  cheap  books,  and  that  therefore  the  Peo- 
ple will  not  permit  the  passage  of  any  bill  for  Inter- 
national Copyright.  Within  a  few  days  we  have 
seen  declarations  like  this  ascribed  to  Members  of 
Congress  and  to  Senators  of  the  United  States.  It 
is  our  duty  always  to  acknowledge  the  good  faith 
of  our  disputant ;  and  we  must  assume,  then,  that 
these  Representatives  and  these  Senators  are  sincere 
in  holding  that  the  absence  of  International  Copy- 


CHEAP  BOOKS  AND  GOOD  BOOKS.     419 

right  gives  us  cheap  books  in  the  United  States.  I 
am  inclined  to  think  that  not  only  the  opponents  of 
copyright  reform,  but  even  many  of  its  advocates, 
believe  that  the  existing  lawlessness  gives  us  cheaper 
books  than  we  should  have  if  the  rights  of  foreign 
authors  were  legally  guarded.  It  is  true,  no  doubt, 
that,  in  consequence  of  the  competing  reprints  of 
rival  pirates,  some  few  books,  mostly  in  a  single 
department  of  literature,  and  generally  of  inferior 
literary  quality,  are  to  be  bought  here  for  very  little 
money.  But,  with  these  infrequent  exceptions, 
books  are  not  now  cheaper  in  America  because  there 
is  free  stealing  from  the  foreigner.  It  may  be  said, 
further,  that  the  absence  of  International  Copyright 
really  retards  the  cheapening  of  good  books  in  this 
country. 

This  may  sound  like  a  paradox,  but  I  shall  try  to 
prove  its  exact  truth.  The  books  which  are  made 
cheaper  by  piracy  are  nearly  all  English  novels. 
The  so-called  libraries — the  Seaside  Library,  for  in- 
stance, the  Franklin  Square  Library,  and  their  fel- 
lows— contain  nearly  all  the  books  which  are  cheap 
because  they  are  not  paid  for.  I  do  not  mean  here 
to  suggest  that  all  the  books  reprinted  in  all  these 
libraries  are  pirated  ;  but  piracy  is  the  primary  cause 
of  their  low  prices.  These  libraries  are  devoted 
almost  wholly  to  fiction;  by  actual  count  of  their 
catalogues,  nine  volumes  out  of  ten  are  novels.  To 
profit  by  the  provisions  of  the  postal  laws,  these 
libraries  are  registered  as  periodicals;  and  they  ap- 
pear at  regular  intervals,  once,  twice,  and  even  three 
times  a  week.     A  library  which  issues  but  one  book 


420  THE   QUESTION   OF   COPYRIGHT. 

a  week  must  publish  fifty-two  books  a  year ;  after 
allowing  for  the  occasional  American  book  of  which 
the  copyright  has  run  out,  and  for  the  occasional 
foreign  biography  or  history  which  seems  popular 
enough  to  fit  it  for  the  uneducated  audience  to 
which  these  series  appeal — after  making  these  allow- 
ances, fully  forty  of  the  fifty-two  annual  numbers  of 
any  one  of  these  libraries  must  be  English  novels. 
Now,  there  are  not  forty  novels  published  in  Great 
Britain  in  any  one  year  which  are  worth  reprinting 
in  the  United  States.  I  do  not  think  there  are 
twenty — I  doubt  if  there  are  ten.  Yet  in  one  of  the 
cheap  libraries,  issued  three  times  a  week,  more  than 
a  hundred  English  novels  are  now  published  every 
year. 

And  this  is  at  a  time  when  there  is  no  great  nov- 
elist alive  in  England,  and  when  the  English  novel 
is  distinctly  inferior  to  the  novel  of  America,  of 
Russia,  and  of  France.  But  these  English  novels 
are  almost  the  only  books  which  are  cheapened  by 
piracy.  These  are  the  books  which  the  women  of 
America,  allured  by  the  premium  of  cheapness,  are 
now  reading  almost  exclusively,  to  the  neglect  of 
native  writers.  There  is  a  resulting  deterioration 
of  the  public  taste  for  good  literature;  and  there  is 
a  resulting  tendency  to  the  adoption  of  English 
social  standards.  It  is  not  wholesome,  nor  a  good 
augury  for  the  future  of  the  American  people,  that 
the  books  easiest  to  get,  and  therefore  most  widely 
read,  should  be  written  wholly  by  foreigners,  and 
chiefly  by  Englishmen,  who  cannot  help  accepting 
and   describing  the   surviving  results  of  feudalism 


CHEAP  BOOKS  AND  GOOD  BOOKS.     42 1 

and  the  social  inequalities  we  tried  to  do  away  with 
one  hundred  and  twelve  years  ago.  "  Society  is  a 
strong  solution  of  books,"  Dr.  Holmes  has  told  us; 
"  it  draws  the  virtue  out  of  what  is  best  worth  read- 
ing, as  hot  water  draws  the  strength  of  tea-leaves." 
While  the  privilege  of  piracy  endures,  American  so- 
ciety is  drawing  the  vice  out  of  what  is  least  worth 
reading,  the  machine-made  tales  of  the  inferior 
British  novelists  of  the  present  day. 

Lest  this  opinion  as  to  the  demerits  of  the  mass 
of  the  English  novels  now  so  freely  reprinted  here 
may  seem  over-severe,  attention  is  drawn  to  a  pass- 
age from  Mr.  Frederic  Harrison's  incisive  essay  on 
the  Choice  of  Books — one  of  the  invigorating  vol- 
umes of  essays  which  England  has  sent  us  of  late 
years  :  "  But  assuredly  black  night  will  quickly  cover 
the  vast  bulk  of  modern  fiction — work  as  perishable 
as  the  generations  whose  idleness  it  has  amused. 
It  belongs  not  to  the  great  creations  of  the  world. 
Beside  them  it  is  flat  and  poor.  Such  facts  in  human 
nature  as  it  reveals  are  trivial  and  special  in  them- 
selves, and  for  the  most  part  abnormal  and  unwhole- 
some. I  stand  beside  the  ceaseless  flow  of  this 
miscellaneous  torrent  as  one  stands  watching  the 
turbid  rush  of  the  Thames  at  London  Bridge,  won- 
dering whence  it  all  comes,  whither  it  all  goes,  what 
can  be  done  with  it,  and  what  may  be  its  ultimate 
function  in  the  order  of  providence.  To  a  reader 
who  would  nourish  his  taste  on  the  boundless  har- 
vests of  the  poetry  of  mankind,  this  sewage  outfall 
of  to-day  offers  as  little  in  creative  as  in  moral  value. 
Lurid  and  irregular  streaks  of  imagination,  extrava- 


422  THE  QUESTION  OF  COPYRIGHT. 

gance  of  plot  and  incident,  petty  and  mean  subjects 
of  study,  forced  and  unnatural  situations,  morbid 
pathology  of  crime,  dull  copying  of  the  dullest  com- 
monplace, melodramatic  hurly-burly,  form  the  cer- 
tain evidence  of  an  art  that  is  exhausted,  produced 
by  men  and  women  to  whom  it  is  become  a  mere 
trade,  in  an  age  wherein  change  and  excitement 
have  corrupted  the  power  of  pure  enjoyment." 

It  may  surprise  some  readers  to  be  told  that 
almost  the  only  books  which  are  cheaper  in  America 
owing  to  the  absence  of  International  Copyright 
are  English  novels.  But  that  this  is  the  fact  I  have 
convinced  myself  by  a  careful  examination  of  the 
statistics  of  the  American  book-trade.  Pirated  books 
are  nearly  always  issued  in  a  series  or  library;  and, 
as  I  have  said,  nine  numbers  in  ten  on  the  list 
of  these  libraries  are  fiction.  The  tenth  number 
may  be  Mr.  Froude's  Life  of  Carlyle,  for  instance, 
or  Mr.  Justin  McCarthy's  History  of  Our  Own 
Times,  both  of  them  books  worth  reading  and 
worth  keeping,  but  in  this  flimsy  form  almost  im- 
possible either  to  read  or  to  keep,  because  of  the 
shabbiness  of  the  type,  the  press-work,  and  the 
paper.  It  is  not  sound  economy  to  spare  the  pocket 
and  spoil  the  eyes.  It  is  not  sound  economy  to 
pay  eighty  cents  for  four  evil  and  awkward  pamph- 
lets comprising  a  book  which  can  be  bought  for  a 
dollar  and  a  half,  decently  bound  and  decently 
printed  on  decent  paper — a  pleasure  to  read  now  and 
a  treasure  to  transmit  to  those  who  come  after  us. 

A  consideration  of  the  present  condition  and  an- 
nual statistics  of  the  American  book-trade  will  show 


CHEAP  BOOKS  AND  GOOD  BOOKS. 


42; 


that  the  legal  right  to  pirate  is  not  now  utilized  by 
most  American  publishers,  and  that  those  who  are 
still  privateers  seek  their  booty  chiefly,  if  not  solely, 
among  books  of  one  exceptional  class.  From  the 
figures  published  annually  in  The  Publishers  Weekly, 
the  following  table  has  been  prepared  to  show  the 
different  kinds  of  books  published  in  the  United 
States  during  the  past  five  years.1  (The  classifica- 
tion is  not  quite  that  of  the  Weekly,  but  has  been 
modified  slightly  by  condensation.) 


Education  and  language 

Law 

Science  (medical,  physical,  mathematical,  politi- 
cal, and  social ) 

Theology,  religion,  mental  and  moral  philosophy. 

History 

Literary  history  and  miscellany,  biography  and 
memoirs,  description  and  travel,  humor  and 
satire 

Poetry  and  the  drama 

Juveniles 

Fiction 

Etcetera 

Total 


1882 

221 

1883 

197 

1884 

1885 

227 

225 

261 

397 

455 

431 

406 

407 

5" 

443 

347 

39o 

399 

460 

118 

119 

"5 

!37 

559 

521 

529 

5°i 

182 

184 

222 

171 

278 

33i 

358 

^88 

767 

670 

943 

934 

333 

265 

329 

33° 

3472 

348i 

4088 

4020 

275 
469 


499 

395 


719 
220 

458 
1080 
379 

4676 


Taking  up  these  classes  in  turn,  we  shall  see  what 
will  be  the  effect  on  each  of  the  passage  of  the 
bill  of  the  American  Copyright  League.  On  the 
first  class,  education  and  language,  there  would  be 
no  effect  at  all,  as  the  text-books  now  used  in  Amer- 
ican schools  were  written  by  Americans  and  are 
covered  by  copyright  :  it  is  hardly  an  exaggeration 
to  say  that  the  American  school-boy  never  sees 
a  book   of   foreign    authorship    in    school-hours ;    I 

1  This  essay  was  first  issued  in  1887. 


424  THE   QUESTION   OF   COPYRIGHT. 

know  that  I  never  did  until  after  I  had  entered 
college,  and  then  very  infrequently.  Fortunately 
for  the  future  of  our  country,  young  Americans 
are  brought  up  on  American  books.  The  founda- 
tion of  American  education  is  the  native  Webster's 
Spelling-book.  In  some  respects  the  making  of 
school-books  is  the  most  important  branch  of  the 
publishing  business,  and  the  passage  of  the  Copy- 
right Bill  would  not  influence  it  in  any  way  ;  Amer- 
ican school-books  would  be  neither  dearer  nor 
cheaper. 

In  the  second  class,  law,  are  included  a  tenth  of 
the  books  published  in  the  United  States  last  year, 
and  from  the  inexorable  circumstances  of  the  case 
most  of  these  books  are  of  American  authorship 
and  are  already  protected  by  copyright.  All  reports 
and  all  treatises  on  practice  and  on  constitutional 
law,  etc.,  are  of  necessity  national.  Now  and  again 
an  English  treatise  of  marked  merit  may  be  edited 
for  the  use  of  American  lawyers  with  references  to 
American  cases,  but  this  is  infrequent ;  and  not 
often  would  the  price  of  any  work  needed  by  the 
American  lawyer  be  increased  by  the  passage  of 
the  Copyright  Bill. 

Of  books  in  the  third  and  fourth  classes — science 
and  theology — very  few  indeed  are  ever  pirated. 
Once  in  every  three  or  four  years  there  appears, 
in  England,  or  France,  or  Germany,  a  book  like 
Canon  Farrar's  Life  of  Christ,  the  American 
price  of  which  is  lowered  by  rival  reprints.  A 
large  majority  of  books  of  science  and  theology 
published    in    America   are    written    by    American 


CHEAP  BOOKS  AND  GOOD  BOOKS.     425 

authors ;  and  in  general  the  minority  by  foreign 
authors  are  published  here  by  an  arrangement  with 
the  foreign  author  tantamount  to  copyright.  Al- 
though purely  ethical  considerations  ought  to  have 
more  weight  with  readers  of  books  of  this  class 
than  with  those  of  any  other,  yet  it  would  be  in- 
frequently that  the  price  of  any  book  of  this  class 
would  be  raised  by  giving  to  the  literary  laborer 
who  made  it  the  right  to  collect  the  hire  of  which 
he  is  worthy. 

Taken  together,  the  next  three  classes  on  the  list 
— history  ; — literary  history  and  miscellany,  biog- 
raphy and  memoirs,  description  and  travel,  humor 
and  satire  ; — and  poetry  and  the  drama — include 
nearly  all  of  what  used  to  be  called  Belles  Lettres 
(except  fiction),  and  they  comprise  nearly  a  quarter 
of  the  books  published  in  America.  In  these  and 
in  the  preceding  classes  most  of  the  books  are  of 
American  authorship,  and  most  of  those  of  foreign 
authorship  are  published  at  just  the  same  price 
as  though  they  were  by  native  writers.  It  would 
probably  surprise  most  readers  who  imagine  that 
the  absence  of  International  Copyright  gives  us 
many  inexpensive  histories  and  biographies,  and 
books  of  travel  and  poems,  if  they  were  to  con- 
sider carefully  the  catalogues  of  the  paper-covered 
collections  which  furnish  forth  our  cheap  literature. 
Among  the  chief  of  these  collections  are  the  Frank- 
lin Square  Library  and  Harper's  Handy  Series.  In 
1886  there  were  issued  fifty- four  numbers  of  the 
Franklin  Square  Library,  one  of  which  was  by  an 
American.     Of  the  remaining  fifty-three,   forty-six 


426  THE   QUESTION   OF  COPYRIGHT. 

were  fiction,  and  only  seven  numbers  could  be  clas- 
sified as  history,  biography,  travels,  or  the  drama — 
only  seven  of  these  books  in  one  year,  and  they 
were  less  than  one-seventh  of  the  books  contained 
in  this  collection.  In  the  same  year  there  were 
sixty-two  numbers  in  Harper's  Handy  Series.  De- 
ducting four  by  American  authors,  we  have  fifty- 
eight  books  issued  in  cheap  form  owing  to  the 
absence  of  International  Copyright.  Of  these  fifty- 
eight  books  fifty-two  were  fiction,  and  only  six 
belonged  in  other  branches  of  Belles  Lettres  ;  only 
six  of  these  books  in  one  year,  and  they  less  than 
one-ninth  of  the  series.  In  these  two  cheap  collec- 
tions, then,  there  were  published  in  1886  one  hun- 
dred and  eleven  books  of  foreign  authorship,  and  of 
these  all  but  thirteen  were  novels  or  stories.  Not 
one  of  these  thirteen  books  was  a  work  of  the  first 
rank  which  a  man  might  regret  missing.  It  may  as 
well  be  admitted  frankly  that  these  thirteen  books 
would  probably  not  have  been  published  quite  so 
cheaply  had  there  been  International  Copyright  ; 
but  it  may  be  doubted  whether,  if  that  were  the 
case,  the  cause  of  literature  and  education  in  the 
United  States  would  have  been  any  the  worse. 

In  the  class  of  books  for  the  young  there  are 
possibly  more  works  of  foreign  authorship  sold 
than  in  any  other  class  that  we  have  hitherto  con- 
sidered, but  in  most  cases  they  are  not  sold  at 
lower  prices  than  American  books  of  the  same 
character.  Indeed,  I  question  whether  many  Eng- 
lish or  French  books  for  the  young  are  sold  at  all  in 
America.     At  bottom  the  American  boy  is  harder 


CHEAP  BOOKS  AND  GOOD  BOOKS.     42/ 

to  please  and  more  particular  than  the  American 
woman  ;  he  likes  his  fiction  home-made,  and  he 
has  small  stomach  for  imported  stories  about  the 
younger  son  of  a  duke.  He  has  a  wholesomer  taste 
for  native  work.  No  English  juvenile  magazine  is 
sold  in  the  United  States,  although  several  Ameri- 
can juvenile  magazines  are  sold  in  Great  Britain. 
We  export  books  for  the  young,  while  we  import 
them  only  to  a  comparatively  slight  extent. 

I  come  now  to  the  one  class  of  books  the  price  of 
which  would  be  increased  by  the  granting  of  Inter- 
national Copyright.  This  is  the  large  and  impor- 
tant class  of  fiction.  Of  course,  American  novels 
would  be  no  dearer;  and  probably  translations 
from  the  French,  German,  Italian,  Spanish,  and  Rus- 
sian would  not  vary  greatly  in  price.  But  English 
novels  would  not  be  sold  for  ten  or  fifteen  cents 
each.  We  should  not  see  five  or  ten  rival  reprints 
of  a  single  story  by  the  most  popular  English 
novelists.  There  would  be  but  a  single  edition  of 
the  latest  novels  of  the  leading  British  story-tellers, 
and  this  would  be  offered  at  whatsoever  price  the 
authorized  publisher  might  choose  to  ask — some- 
times much,  generally  little.  English  fiction  would 
no  longer  cost  less  than  American  fiction,  The 
premium  of  cheapness,  which  now  serves  to  make 
the  American  public  take  imported  novels  instead 
of  native  wares,  would  be  removed;  and  with  it 
would  be  removed  the  demoralizing  influence  on 
Americans  of  a  constant  diet  of  English  fiction. 
That  American  men  and  women  should  read  the 
best  that  the  better  English   novelists  have  to  offer 


428  THE  QUESTION  OF  COPYRIGHT. 

us  is  most  desirable ;  that  our  laws  should  encour- 
age the  reading  of  English  stories,  good  and  bad 
together,  and  the  bad,  of  course,  in  enormous  ma- 
jority, is  obviously  improper  and  unwise. 

The  evil  effect  of  this  unfortunate  state  of  things 
Mark  Twain  has  most  graphically  depicted.  He 
asks  if  it  is  an  advantage  to  us,  the  people  of  the 
United  States,  to  get  all  kinds  of  cheap  alien  books 
devoured  "  in  these  proportions  :  an  ounce  of  whole- 
some literature  to  a  hundred  tons  of  noxious  ?  " 

"Is  this  an  advantage  to  us?"  he  inquires  fur- 
ther; and  he  answers  his  own  question  thus:  "It 
certainly  is,  if  poison  is  an  advantage  to  a  person; 
or  if  to  teach  one  thing  at  the  hearth-stone,  the  po- 
litical hustings,  and  in  a  nation's  press,  and  teach 
the  opposite  in  the  books  the  nation  reads  is  prof- 
itable ;  or,  in  other  words,  if  to  hold  up  a  national 
standard  for  admiration  and  emulation  half  of 
each  day,  and  a  foreign  standard  the  other  half, 
is  profitable.  The  most  effective  way  to  train  an 
impressible  young  mind  and  establish  for  all  time 
its  standards  of  fine  and  vulgar,  right  and  wrong, 
and  good  and  bad,  is  through  the  imagination  ;  and 
the  most  insidious  manipulator  of  the  imagination 
is  the  felicitously  written  romance.  The  statistics 
of  any  public  library  will  show  that  of  every  hundred 
books  read  by  our  people  about  seventy  are  novels 
— and  nine-tenths  of  them  foreign  ones.  They  fill 
the  imagination  with  an  unhealthy  fascination  for 
foreign  life,  with  its  dukes  and  earls  and  kings,  its 
fuss  and  feathers,  its  graceful  immoralities,  its 
sugar-coated    injustice  and    oppressions;    and  this 


CHEAP  BOOKS  AND  GOOD  BOOKS.     429 

fascination  breeds  a  more  or  less  pronounced  dis- 
satisfaction with  our  country  and  form  of  govern- 
ment, and  contempt  for  our  republican  common- 
places and  simplicities;  it  also  breathes  longings  for 
something  '  better,'  which  presently  crop  out  in 
diseased  shams  and  imitations  of  that  ideal  foreign 
life.  Hence  the  dude.  Thus  we  have  this  curious 
spectacle  :  American  statesmen  glorifying  Ameri- 
can nationality,  teaching  it,  preaching  it,  urging  it, 
building  it  up — with  their  mouths ;  and  undermin- 
ing it  and  pulling  it  down  with  their  acts.  This  is 
to  employ  an  Indian  nurse  to  suckle  your  child, 
and  expect  it  not  to  drink  in  the  Indian  nature 
with  the  milk.  It  is  to  go  Christian-missionarying 
with  infidel  tracts  in  your  hands.  Our  average 
young  person  reads  scarcely  anything  but  novels ; 
the  citizenship  and  morals  and  predilections  of  the 
rising  generation  of  America  are  largely  under  train- 
ing by  foreign  teachers.  This  condition  of  things 
is  what  the  American  statesmen  think  it  wise  to 
protect  and  preserve  —  by  refusing  International 
Copyright,  which  would  bring  the  national  teacher 
to  the  front  and  push  the  foreign  teacher  to  the 
rear.  We  do  get  cheap  books  through  the  absence 
of  International  Copyright ;  and  any  who  will  con- 
sider the  matter  thoughtfully  will  arrive  at  the  con- 
clusion that  these  cheap  books  are  the  costliest 
purchase  that  ever  a  nation  made." 

International  Copyright  will  perhaps  increase  the 
cost  of  such  English  novels  as  may  be  written 
in  the  future  ;  but  it  is  not  retroactive ;  it  cannot 
affect  the  past ;  it  will  not  alter  the  price  of  Shake- 


430  THE   QUESTION   OF   COPYRIGHT. 

speare  or  of  Scott,  of  Macaulay  or  of  Thackeray.  It 
will  not  make  any  American  author  ask  more  for 
his  book,  if,  indeed,  by  expanding  his  market,  it 
does  not  tempt  him  to  lower  his  terms,  seeking  a 
wider  sale  and  a  smaller  profit.  Emerson  and  Ir- 
ving, Longfellow  and  Hawthorne,  will  be  as  easily 
accessible  hereafter  as  they  are  to-day.  The  books 
which  are  cheap  now  will  always  be  cheap  ;  and 
with  the  removal  of  the  sickly  flood  of  stolen  Eng- 
lish fiction  there  will  come  an  opportunity  for  the 
American  publisher  to  issue  good  books  at  low 
prices. 

Here  we  come  to  the  special  point  of  this  paper: 
the  cheapest  books  to  be  bought  to-day  in  the 
United  States  are  mostly  inferior  stories  by  contem- 
porary English  novelists,  while  the  cheapest  books 
to  be  bought  to-day  in  England,  in  France,  and  in 
Germany  are  the  best  books  by  the  best  authors  of 
all  times.  Those  who  declaim  against  International 
Copyright  because  they  do  not  wish  to  deprive  the 
poor  boy  of  the  cheap  book  he  may  study  by  the 
firelight  after  his  hard  day's  work,  would  perhaps  be 
surprised  to  be  told  that  of  the  "  Hundred  Best 
Books"  (of  which  we  lately  had  so  many  lists),  of 
the  books  best  fitted  to  form  character  and  to  make 
a  man,  very  few  indeed,  not  more  than  half  a  dozen, 
are  to  be  found  in  any  of  the  cheap  libraries  which 
flourish  because  of  the  absence  of  copyright.  Most 
of  these  great  works  are  old  and  consecrated  by 
time  ;  they  are  nearly  all  free  to  be  printed  by  whoso 
will.  In  Sir  John  Lubbock's  original  list  of  a  hun- 
dred best  authors  only  two  were  American,  and  only 


CHEAP  BOOKS  AND  GOOD  BOOKS.     43 1 

twelve  were  recent  Englishmen  whose  works  are 
still  protected  by  English  copyright.  Eighty-six 
out  of  the  hundred  were  classics  of  ancient  and 
modern  literature — Greek  and  Latin,  Italian  and 
French,  German  and  English. 

Now,  in  Germany,  in  France,  and  in  England, 
there  have  been  many  efforts  of  late  years  to  supply 
very  cheap  editions  of  these  classics  at  a  price  with- 
in the  means  of  the  poorest  student.  In  the  United 
States  no  such  effort  has  been  made  ;  nor  is  it  likely 
to  be  made  as  long  as  the  market  for  cheap  books 
is  supplied  by  inferior  foreign  fiction,  which  not 
only  usurps  the  place  of  better  literature,  but  spoils 
the  appetite  for  it.  The  cheap  books  to  be  bought 
in  England,  in  France,  and  in  Germany  are  stimu- 
lant and  invigorating,  mentally  and  morally  ;  a  man 
is  better  for  reading  them  ;  he  is  richer  and  stronger, 
and  more  fit  for  the  struggle  of  life.  The  cheap 
books  to  be  bought  in  the  United  States  are  only 
too  often  the  trivial  trash  of  the  ladies  who  call 
themselves  "Ouida"and  "  The  Duchess."  How 
much  these  may  nerve  a  man  or  a  woman  for  the 
realities  of  existence,  how  much  the  wisdom  to  be 
got  from  them  may  arm  us  for  the  stern  battle  of 
life,  I  cannot  say. 

A  consideration  of  the  conditions  of  book-pub- 
lishing in  Great  Britain,  in  France,  and  in  the  Ger- 
man Empire  is  not  without  interest  in  itself ;  and  it 
may  serve  further  to  show  that  Americans  do  not 
enjoy  a  monopoly  of  cheap  books. 

The  British  are  book-borrowers,  and  not  book- 
buyers  ;  they  are  accustomed  to  hire  their  freshest 


432  THE   QUESTION   OF   COPYRIGHT. 

reading  matter  from  the  circulating  library.  I  re- 
member hearing  Professor  Sylvester,  the  eminent 
English  mathematician,  who  was  until  recently  a 
member  of  the  faculty  of  Johns  Hopkins  Univer- 
sity— I  remember  hearing  him  express  the  surprise 
he  felt  on  his  first  arrival  in  this  country,  when  he 
was  staying  with  Professor  Pearce  in  Cambridge,  and 
happened  to  hear  two  of  the  ladies  of  the  family 
remark  that  they  had  just  been  in  to  Boston  to  buy 
a  book.  "  To  buy  a  book?"  repeated  Professor 
Sylvester  ;  "  why,  in  England  nobody  buys  a  book  !  " 
Perhaps  this  is  an  over-statement  of  the  case  ;  but 
it  is  true  that  the  British  book-trade  is  in  an  un- 
healthy condition,  and  that  the  publishers  and  the 
public  are  at  opposite  sides  of  a  vicious  circle — the 
people  refuse  to  purchase  because  new  books  are 
dear,  and  the  publishers  ask  a  high  price  because 
there  are  but  few  buyers. 

In  England  a  novel,  for  instance,  is  generally 
published  in  three  volumes  at  half  a  guinea  a  vol- 
ume— say  seven  dollars  and  a  half  for  a  single  story. 
At  this  prohibitive  price  the  publisher  can  hope  for 
no  private  purchaser,  and  he  relies  wholly  on  the 
demand  from  the  circulating  libraries,  which  have  to 
meet  the  wishes  of  their  subscribers,  and  to  which 
the  volumes  are  sold  at  a  heavy  discount.  Not 
only  novels,  but  travels,  histories,  and  biographies 
are  usually  brought  out  in  England  at  absurdly 
exaggerated  prices.  If  the  book  succeed,  if  it  be 
really  deserving  of  a  wider  sale,  popular  editions  at 
lower  figures  soon  follow.  It  is  only  the  first  edi- 
tions, intended   solely  for  the  circulating  libraries, 


CHEAP  BOOKS  AND  GOOD  BOOKS.     433 

which  are  disproportionately  dear.  Six  months  or 
a  year  after  a  novel  first  appears  in  three  volumes, 
it  will  probably  be  republished  in  a  single  volume 
at  a  price  varying  from  three  shillings  and  sixpence 
to  six  shillings— say,  ninety  cents  to  a  dollar  and  a 
half.  Often  it  also  appears  a  little  later  in  a  rail- 
way edition  at  two  shillings — fifty  cents.  The  re- 
duction in  the  price  of  histories  and  biographies  is 
not  so  large;  but  second-hand  copies  in  excellent 
condition  can  be  had  at  a  tithe  of  the  original  cost 
from  the  circulating  libraries,  which  sell  off  their 
surplus  stock  as  soon  as  the  pressure  of  the  first 
demand  is  relieved. 

This  system  of  publishing  seems  cumbrous  and 
top-heavy.  It  is  peculiar  to  Great  Britain.  It  has 
never  been  adopted  by  any  other  nation.  It  could 
exist  only  in  an  island,  or  in  a  country  with  a  com- 
pact population  having  both  leisure  and  means. 
But  apparently  it  is  not  altogether  unsatisfactory  to 
the  English,  and  it  does  not  make  books  as  dear  as 
at  first  glance  we  might  suppose.  The  brand-new 
book,  smoking-hot  from  the  press,  is  intended  to  be 
borrowed  and  not  bought  ;  but  commonly,  after  a 
year  or  two,  it  can  be  had  at  a  moderate  price. 
Professor  Lounsbury,  of  the  Sheffield  Scientific 
School  at  Yale,  after  an  experience  of  many  years, 
has  recorded  it  as  his  deliberate  opinion  that,  in  the 
long  run,  English  books  are  cheaper  than  American 
books. 

Of  late  there   have   been   many  efforts  made  in 

England  to   create  and  to  satisfy  a  popular  desire 

for  eood  books  at  low  prices.     There  are  even  signs 
&    28 


434  THE   QUESTION   OF   COPYRIGHT. 

that  the  circulating  library  system  is  not  as  secure 
as  it  has  seemed,  and  that  the  British  may  become 
book-buyers  instead  of  book-borrowers.  A  Bristol 
publisher  having  sold  several  hundred  thousand 
copies  of  the  late  Hugh  Conway's  Called  Back  at  a 
shilling  (twenty-five  cents),  has  continued  the  series 
with  original  stories  by  Mr.  Wilkie  Collins,  Mr. 
Walter  Besant,  Mr.  Andrew  Lang,  and  others.  All 
of  Disraeli's  novels  are  now  for  sale  at  a  shilling 
each ;  and  all  of  Thackeray's  writings  are  being 
reissued  at  a  shilling  a  volume  by  his  own  publish- 
ers, who  still  own  the  copyrights.  A  complete  edi- 
tion of  Carlyle's  works  has  just  been  begun,  to  be 
sold  at  the  same  low  price — twenty-five  cents.  And 
it  is  to  be  noted  that  these  sets  of  Thackeray  and 
Carlyle  are  not  ill-made  and  flimsy  pamphlets,  badly 
printed  with  worn  type  on  poor  paper ;  they  are 
honest  books,  firmly  printed  on  good  paper  and 
substantially  bound  in  cloth. 

Mr.  John  Morley's  admirable  series  of  English 
Men  of  Letters  is  now  in  course  of  republication  at 
a  shilling  for  each  biography.  And  a  shilling  is  the 
price  asked  for  each  of  the  well-made,  neatly 
bound,  and  carefully  prefaced  volumes  of  Professor 
Henry  Morley's  Universal  Library,  which  is  in- 
tended to  contain  the  masterpieces  of  the  master 
minds  of  all  countries  and  all  ages.  In  this  most 
excellently  edited  series  there  have  already  ap- 
peared, month  by  month,  the  chief  works  of  Ho- 
mer, Virgil,  Dante,  Machiavelli,  Rabelais,  Bacon, 
Ben  Jonson,  Cervantes,  Moliere,  De  Foe,  Locke, 
Dr.   Johnson,    Goldsmith,    Goethe,    and    Coleridge. 


CHEAP  BOOKS  AND  GOOD  BOOKS.     435 

Professor  Henry  Morley  is  also  the  editor  of  an- 
other series,  perhaps  even  more  important,  because 
the  price  is  lower  and  the  issue  more  frequent. 
This  is  Cassell's  National  Library,  in  weekly  vol- 
umes at  threepence  each.  For  six  cents  a  week  a 
man  may  buy  a  solid  little  tome  of  about  two  hun- 
dred pages,  containing  Franklin's  Autobiography, 
Walton's  Complete  Angler,  Byron's  Childe  Harold, 
and  the  like.  Nothing  at  once  as  cheap  in  price 
and  as  good  in  quality  as  this  National  Library  has 
ever  been  brought  out  in  America. 

Crossing  the  Channel  to  France,  we  find  the  con- 
ditions of  publishing  very  different  and  far  more 
healthy.  There  was  a  time  once  when  books  in 
France  were  expensive,  and  when  authors  and  pub- 
lishers alike  were  content  with  a  small  sale  and  an 
apparently  large  profit.  The  late  Michel-Levy  be- 
lieved that  "  cheap  books  are  a  necessity,  and  a 
necessity  which  need  bring,  moreover,  no  loss  to 
either  authors  or  publishers."  1  He  converted  cer- 
tain of  the  leading  French  writers  to  his  views,  and 
he  revolutionized  the  methods  of  French  publish- 
ing. The  theory  of  Michel-Levy,  that  the  low  price 
of  one  book  will  tempt  the  reader  and  create  a  de- 
sire for  another  book,  was  solidly  sustained  by  the 
result  of  his  experiment.  Thanks  to  him  and  to 
those  who  followed  his  example,  France  is  now  the 
country  where  books  are  the  cheapest  and  where 
authors   are   the    best    paid.     Dignified    historical 

'  An  account  of  Michel-Levy's  reform  may  be  found  in  Mr. 
Matthew  Arnold's  acute  paper  on  "Copyright"  in  his  volume  of 
Irish  Essays. 


436  THE   QUESTION   OF   COPYRIGHT. 

works  generally  appear  in  portly  tomes  at  seven 
francs  and  a  half  each — say,  a  dollar  and  a  half  (the 
price  in  America  for  a  volume  of  the  same  impor- 
tance would  probably  vary  from  two  dollars  and  a 
half  to  five  dollars).  These  volumes  at  seven  francs 
and  a  half  each  are  relatively  few,  as  the  enormous 
majority  of  French  books,  poems,  novels,  biogra- 
phies, essays,  and  so  forth  are  of  the  size  called  the 
"  format  Charpentier,"  and  are  sold  for  three  francs 
and  a  half  each — say,  seventy  cents. 

Cheap  as  these  French  books  are  when  new,  they 
are  often  made  even  cheaper  still  as  their  popularity 
broadens.  In  imitation  of  the  Michel-Levy  collec- 
tion, many  publishers  have  series  which  they  sell  for 
one  franc  a  volume — twenty  cents — for  a  seemly 
and  shapely  tome  containing  a  complete  copyright 
book,  by  an  author  of  wide  repute.  Even  lower 
priced,  however,  is  a  later  series,  the  Bibliothcque 
Nationale,  founded  twenty-five  years  ago,  now  ex- 
tending to  several  hundred  numbers,  and  containing 
not  only  the  French  classics  but  also  translations  of 
nearly  all  the  classics  of  other  literatures.  The  tidy 
little  tomes  of  this  series  are  sold  in  stitched  paper 
covers  at  twenty-five  centimes  each — five  cents — and 
in  cloth  bindings  for  nine  cents  each.  Inexpensive  as 
is  this  Bibliothcque  Nationale,  it  has  now  a  new  rival 
— the  Nouvelle  Bibliotheque  Populaire — in  which  the 
single  numbers  are  sold  for  two  cents  each.  I  be- 
lieve that  nothing  cheaper  than  this  has  ever  been 
attempted  anywhere.  Besides  the  consecrated  mas- 
terpieces of  literature,  the  books  of  an  impreg- 
nable reputation,  which  ought  to   furnish  forth  the 


CHEAP  BOOKS  AND  GOOD  BOOKS.     437 

bulk  of  any  collection  making  an  appeal  to  the  very- 
widest  circle  of  readers,  the  conductor  of  the  Non- 
velle  BibliotJicque  Popnlaire  is  wisely  selecting  trans- 
lations into  French  of  the  best  books  of  contempo- 
rary authors  of  other  nations.  Thus  can  a  pleased 
American  discover  on  the  catalogue  the  names  of 
Poe,  Irving,  Longfellow,  and  Mr.  Bret  Harte ; 
whether  these  authors  are  as  pleased  to  see  their 
works  taken  without  money  and  without  price  is 
another  question ! 

Turning  from  France  to  Germany,  we  find  no 
great  difference  in  the  conditions  of  publishing, 
although  the  Germans  cannot  make  their  new  books 
quite  as  cheap  as  can  the  French,  since  their  market 
is  not  so  large.  German  books,  in  the  department 
which  at  college  we  used  to  call  Belles  Lettres,  must 
be  consumed  in  the  home  market ;  there  is  no  fierce 
demand  for  export.  But  French  fiction  and  French 
criticism  are  interesting  and  entertaining  throughout 
the  world.  A  German  novel  must  rely  for  its  read- 
ers on  the  Fatherland  and  on  those  who  speak  the 
mother-tongue  ;  while  French  is  still  the  language 
of  courts  and  of  culture,  and  a  French  novel  may 
be  read  with  as  much  avidity  in  Berlin  and  Vienna, 
in  London  and  New  York,  as  in  Paris  itself. 

Whatever  may  be  the  price  of  the  new  novel  in 
Germany,  and  however  insufficient  may  be  its  sale, 
the  Germans  are  not  behind  the  French  in  their 
cheap  editions  of  the  great  books  of  the  world. 
The  successors  of  the  house  which  issued  Goethe's 
writings  now  publish  the  Cottd sche  Bibliothek  der 
Weltliteratur,  in  which  the  works  of  Goethe,  Schil- 


438  TPIE   QUESTION   OF   COPYRIGHT. 

ler,  Lessing,  Shakespeare,  Moliere,  Calderon,  Dante, 
and  their  fellows  appear  in  solid  volumes,  substan- 
tially bound,  and  sold  at  one  mark  each — twenty- 
five  cents.  One  mark  is  also  the  price  asked  for 
any  volume  of  Das  Wissen  der  Gegenwart,  a  collec- 
tion of  new  books,  expressly  prepared,  well  printed, 
well  bound,  and  most  elaborately  illustrated.  The 
volumes  of  this  series  are  written  by  experts,  and 
they  are  intended  to  form  a  sort  of  cyclopaedia  of 
the  results  of  the  latest  researches  in  science  and 
history. 

Nor  are  the  Germans  lacking  in  a  library  of  the 
ancient  and  modern  classics  at  a  still  lower  price.  I 
believe  that  it  was  Herr  Reclam's  Universal  Biblio- 
tJiek  which  suggested  the  French  Bibliotkeque  Na- 
tional e  and  the  English  "  National  Library."  The 
single  numbers  of  this  series  cost  each  twenty 
pfennige — say,  five  cents  ;  and  at  this  price  may  be 
had  all  the  German  classics,  as  well  as  translations  of 
the  best  writings  in  other  languages.  Alongside  the 
works  of  Schiller  and  Sophocles,  of  Shakespeare  and 
Sheridan,  the  American  finds  translations  of  Cooper, 
Longfellow,  Mark  Twain,  Mrs.  Stowe,  Mr.  Aldrich, 
and  Mr.  Bret  Harte — of  course  we  cannot  expect 
Germany  to  protect  the  rights  of  American  authors 
until  America  protects  the  rights  of  German  authors. 
The  success  of  this  cheap  series  has  brought  out 
a  rival  still  cheaper — Meyer's  Volksbiicher  at  ten 
pfennige  a  volume — say,  two  cents  and  a  half  for  a 
complete  copy  of  a  masterpiece. 

In  this  survey  of  the  conditions  of  publishing  in 
England,   France,  and  Germany,  I   have  sought   to 


CHEAP  BOOKS  AND  GOOD  BOOKS.     439 

show  that  what  might  seem,  at  first  sight,  to  be  a 
paradox,  is  only  the  exact  truth.  In  America  the 
cheapest  books  are  not  good  books,  for  the  most 
part ;  certainly  they  are  not  the  best  books.  In 
Europe  the  best  books  are  the  cheapest.  That  this  un- 
fortunate state  of  affairs  in  this  country  is  the  result 
of  the  absence  of  International  Copyright,  and  the 
inevitable  instability  of  the  book  trade,  I  maintain  ; 
and  I  assert  also  that  the  consequences  of  the 
present  unhealthy  condition  are  injurious  to  the 
character  of  the  American  people.  We  now  enjoy 
the  privilege  of  piracy,  as  the  dwellers  on  a  rocky 
islet  used  to  enjoy  the  privilege  of  wrecking— and 
we  avail  ourselves  of  this  privilege  only  to  the  per- 
dition of  our  own  souls.  We  encourage  bad  books 
and  we  discourage  good  books.  And  to  discourage 
or  injure  or  retard  a  good  book,  as  it  goes  on  its 
mission  of  making  the  world  better,  is  to  do  an  evil 
deed.  No  one  has  more  nobly  spoken  of  the  crime 
of  book  murder  than  John  Milton,  and  with  a  quota- 
tion from  him  I  may  fitly  conclude  : 

"  For  books  are  not  absolutely  dead  things,  but 
do  contain  a  potency  of  life  in  them  to  be  as  active 
as  that  soul  was  whose  progeny  they  are  ;  nay,  they 
do  preserve,  as  in  a  vial,  the  purest  efficacy  and  ex- 
traction of  that  living  intellect  that  bred  them.  I 
know  they  are  as  lively  and  as  vigorously  product- 
ive as  those  fabulous  dragon's  teeth  :  and  being 
sown  up  and  down  may  chance  to  spring  up  armed 
men.  And  yet,  on  the  other  hand,  unless  wariness 
be  used,  as  good  almost  kill  a  man  as  kill  a  good 
book.     Who  kills  a  man  kills  a  reasonable  creature, 


440  THE  QUESTION  OF  COPYRIGHT. 

God's  image;  but  he  who  destroys  a  good  book 
kills  reason  itself,  kills  the  image  of  God,  as  it  were, 
in  the  eye.  Many  a  man  lives,  a  burden  to  the 
earth  ;  but  a  good  book  is  the  precious  life-blood 
of  a  master-spirit,  embalmed  and  treasured  up  on 
purpose  to  a  life  beyond  life." 
New  York,  March  15,  1888. 


XXIV. 

AN  INTERNATIONAL  COPYRIGHT  WILL 
NOT  INCREASE  THE  PRICES  OF 
BOOKS. 

One  of  the  most  frequent  objections  to  the  grant- 
ing of  copyright  to  foreign  authors  is  the  impression 
that  any  such  measure  must  materially  increase  the 
selling  price  of  books.  It  is  pointed  out  that,  in  the 
absence  of  a  copyright,  foreign  works  have  been 
issued  in  this  country  at  very  low  prices,  and  it  is 
assumed  that  when  it  becomes  necessary  to  add  to 
the  cost  of  production  the  amounts  to  be  paid  to 
the  authors,  and  when  the  sales,  now  divided  be- 
tween several  competing  editions,  are  left  under  the 
control  of  one  publisher,  the  prices  paid  by  the  con- 
sumer will  probably  be  materially  increased. 

The  supporters  of  International  Copyright  take 
the  ground,  on  the  other  hand,  that  when  the 
American  people,  who  are  lovers  of  fair  play,  are 
once  convinced  of  the  justice  of  the  claim  of  authors 
(American  and  foreign)  to  control  their  productions, 
and  to  receive  compensation  from  all  who  are  bene- 
fited by  these  productions,  this  claim  will  be 
promptly  granted,  whether  it  costs  the  public  some- 
thing to  do  so  or  not. 


442  THE   QUESTION   OF   COPYRIGHT. 

Those  who  are  familiar  with  the  business  of  mak- 
ing and  selling  books  assert  further,  moreover,  that 
a  copyright  measure  will  have  the  effect  of  lessening 
the  price  of  all  the  better  classes  of  books,  which 
are  of  the  most  importance  for  the  higher  education 
and  cultivation  of  the  people,  and  of  increasing  the 
supplies  of  these;  and  that  the  only  publications 
which  will  be  increased  in  price  are  the  cheapest 
issues  of  foreign  fiction  ;  and  in  support  of  this  con- 
clusion they  ask  attention  to  the  following  consider- 
ations: 

First.  It  is  in  order  to  bear  in  mind  that  the 
conditions  of  the  literature  now  in  existence  can,  of 
course,  not  be  affected  by  any  copyright  measure, 
as  no  such  measure  could  be  made  retroactive,  and 
there  is,  therefore,  no  foundation  for  the  vague 
assertion  which  has  occasionally  been  made,  that 
"  the  people  are  to  be  asked  to  pay  more  for  their 
Macaulay  and  Tennyson." 

Second.  It  is  to  be  remembered  that  the  so-called 
"  Libraries,"  which  have  been  supplying  foreign 
novels  at  fifteen  and  twenty  cents,  after  exhausting 
the  books  really  worth  reprinting,  and  after  includ- 
ing in  their  lists  (under  the  necessity  of  a  periodical 
issue)  a  large  mass  of  indifferent  and  undesirable 
material,  by  no  means  deserving  the  attention  of 
American  readers,  are  now  in  great  part  being  dis- 
continued, partly  because  of  the  exhaustion  of  re- 
printable  material,  and  partly,  also,  because  they  are 
not  profitable  undertakings.  One  reason  why  these 
"Libraries"  are  proving  unremunerative  is  unques- 
tionably because  of  a  change  in  the  taste  and  in  the 


COPYRIGHT   AND    PRICES.  443 

judgment  of  buyers  of  books,  who  are  beginning  to 
understand  that  they  secure  better  value  in  paying 
fifty  cents  or  seventy-five  for  a  decently  printed  vol- 
ume, that  can  be  preserved  for  the  use  of  a  number 
of  readers,  than  in  expending  fifteen  or  twenty  cents 
for  a  flimsy  quarto,  fit  only  to  be  thrown  away  after 
one  reading. 

Third.  A  large  number  of  important  English  and 
Continental  works,  American  editions  of  which 
would  prove  of  material  service  to  American  stu- 
dents and  readers,  it  is  not  practicable,  under  the 
present  state  of  things,  for  American  publishers  to 
undertake  at  all,  as,  in  case  their  reprints  are  favora- 
bly received,  any  prospect  of  profit  from  these  is 
promptly  destroyed  by  the  competition  of  rival  and 
unauthorized  editions,  which  secure  the  advantage 
of  their  literary  judgment  and  their  advertising. 
Such  American  readers  as  are  obliged  to  purchase 
this  class  of  works  must,  as  a  result,  pay  the  cost  of 
the  expensive  and  often  unsuitable  foreign  editions, 
while  (as  such  editions  cannot  be  adequately  adver- 
tised) a  large  number  of  readers  to  whom  such  books 
would  be  of  service  are  never  even  made  aware  of 
their  existence.  An  immediate  result  of  an  Inter- 
national Copyright  would  be  the  reprinting  of  inex- 
pensive editions,  suited  for  the  wants  of  a  large  cir- 
cle of  impecunious  buyers,  of  a  number  of  European 
works  now  brought  into  this  country  only  in  expen- 
sive "limited"  editions. 

Fourth.  An  International  Copyright  will  render 
practicable  a  large  number  of  international  under- 
takings which  cannot  be  ventured  upon  without  the 


444  THE   QUESTION   OF   COPYRIGHT. 

assured  control  of  several  markets.  The  volumes 
for  these  international  series  will  be  secured  from 
the  leading  writers  of  the  world,  American,  English, 
and  Continental,  and  the  compensation  paid  to 
these  writers,  together  with  the  cost  of  the  produc- 
tion of  illustrations,  maps,  tables,  etc.,  will  be  di- 
vided between  the  several  editions.  The  lower  the 
proportion  of  this  first  outlay  to  be  charged  to  the 
American  edition,  the  lower  the  price  at  which  this 
can  be  furnished ;  and  as  the  publisher  secures  the 
most  satisfactory  returns  from  large  sales  to  a  wide 
circle,  the  lower  the  price  at  which  it  will  be  fur- 
nished. 

It  would  not  be  quite  correct  to  say  that  these 
international  series  would  be  cheaper  than  at  pres- 
ent, for  there  are  as  yet  hardly  any  examples  of 
them ;  but  it  is  the  case  that  by  means  of  such  series 
(only  adequately  possible  under  International  Copy- 
right) American  readers  will  secure  the  best  litera- 
ture of  leading  contemporary  writers  at  far  lower 
prices  than  can  ever  otherwise  be  practicable. 

Fifth.  The  higher  prices  of  current  English  books 
are  cited  as  examples  of  what  American  readers 
would  under  a  copyright  be  compelled  to  pay  for 
American  editions  of  similar  works.  It  is,  however, 
easy  to  show  that  the  selling  price  of  books  de- 
pends, not  upon  the  conditions  of  copyright,  but 
upon  the  requirements  of  the  market.  Books  are 
first  issued  in  England  in  the  high-priced  editions, 
because  under  the  English  system  the  first  demand 
for  new  publications  is  largely  through  the  circu- 
lating libraries,  which   have   encouraged  the  main- 


COPYRIGHT  AND   PRICES.  445 

tenance  of  prices  sufficiently  high  to  hinder  the 
buying  of  books.  There  is  also  the  further  reason 
that  in  England  the  readers  and  buyers  of  books 
belong  in  much  larger  proportions  to  the  wealthy 
classes  than  is  the  case  in  the  United  States. 

In  France  and  Germany,  on  the  other  hand,  coun- 
tries fully  under  the  control  of  copyright,  both 
domestic  and  international,  the  first  issues  of  stand- 
ard and  current  publications,  both  copyright  and 
non-copyright,  are  cheaper  than  anywhere  else  in 
the  world. 

In  Paris,  for  instance,  a  beautifully  printed  and 
beautifully  illustrated  edition  of  such  a  book  as 
Daudet's  Tartarin  dans  les  Alpes  is  published  at 
seventy  cents,  and  this  is  one  example  of  many.  In 
Berlin,  we  find  such  series  as  Das  Wissen  der 
Gegenwart,  "  The  Knowledge  of  the  Present,"  is- 
sued in  handsomely  printed,  well-illustrated,  and 
neatly  bound  volumes,  of  which  sixty-two  are  now 
ready,  selling  at  one  mark,  twenty-five  cents,  each. 
The  works  in  this  series  are  written  especially  for 
it  by  the  leading  scholars  and  scientists  of  the  Con- 
tinent, and  this  series  is  one  of  many.  The  Leipsic 
publisher,  Tauchnitz,  possesses,  under  the  present 
International  Copyright  system  of  Europe,  a  practi- 
cal "  monopoly  "  for  the  sale  on  the  Continent  of 
his  cheap  reprints,  in  English,  of  the  works  pur- 
chased by  him  from  English  authors.  He  does  not, 
however,  take  advantage  of  such  "monopoly"  to 
attempt  to  extort  high  prices  from  his  readers,  sim- 
ply because  there  would  be  no  profit  in  making  any 
such  attempt.     He  sells  these  copyright  books,  in 


446  THE   QUESTION   OF  COPYRIGHT. 

complete  and  well-printed  volumes,  at   one  and  a 
half  marks,  or  thirty-six  cents,  each. 

American  publishers  controlling,  under  a  similar 
copyright,  the  sale  of  similar  books  for  a  market  of 
sixty  millions  of  people,  would  in  like  manner  find 
it  to  their  advantage  to  supply  this  market  with 
low-priced  editions  planned  for  popular  sale,  simply 
because  high-priced  editions  could  not  be  sold. 

It  is  also  the  case  that,  since  the  establishment  of 
International  Copyright  between  the  different  states 
of  Germany  and  the  several  countries  of  Europe, 
there  has  been  a  steady  decrease  in  the  prices,  in 
these  countries,  of  standard  and  current  literature, 
copyright  as  well  as  non-copyright,  and  a  marked 
impetus  has  been  given  to  publishing  undertakings 
of  service  to  the  community. 

As  Mr.  Brander  Matthews  has  well  pointed  out, 
the  cheapest  books  to  be  bought  to-day  in  the 
United  States  are  mostly  inferior  stories  by  con- 
temporary English  novelists,  while  the  cheapest 
books  to  be  bought  to-day  in  Europe  are  the  best 
works  by  the  best  authors  of  all  times.  In  Amer- 
ica, where  the  system,  or  lack  of  system,  of  "  open 
publishing"  prevails,  the  cheapest  books  are  the 
least  important  and  often  the  least  desirable.  In 
Europe,  where  International  Copyright  is  in  force, 
the  best  books  are  the  cheapest.  The  absence  of  In- 
ternational Copyright  encourages  bad  books  or  poor 
books,  and  discourages  good  books. 

Such  examples  show  that  the  selling  price  of  a 
book  depends  not  on  the  copyright  but  on  the  ex- 
tent of  the  market  that  can  be  assured  for  it.    With- 


COPYRIGHT  AND   PRICES.  447 

out  an  International  Copyright  no  assured  market 
is  possible,  and  no  low-priced  international  series 
can  be  planned  or  prepared  for  American  readers. 

Sixth.  A  reduction  can  also  be  looked  for  in  the 
selling  price  of  certain  lines  of  American  fiction  and 
other  current  literature.  Under  the  present  "  cut- 
throat "  competition,  the  publishers  of  the  works 
of  such  authors  as  Howells,  James,  Aldrich,  Bret 
Harte,  and  other  leading  American  writers  have 
practically  given  up  the  attempt  to  compete  with 
the  unpaid-for  reprints  of  foreign  writers.  Know- 
ing that  they  can  depend  upon  certain  (compara- 
tively limited)  circles  of  readers,  they  find  it  to  be 
more  profitable  to  obtain  from  these  readers  the 
highest  prices  they  are  willing  to  pay.  When,  on 
the  other  hand,  the  foreign  works  are  put  on  the 
same  footing  as  those  of  American  writers,  the  pub- 
lishers of  the  latter  will  find  it  to  their  interest  to 
plan  for  the  widest  popular  sale,  and  for  this  pur- 
pose will  at  once  issue  their  books  at  popular  prices. 

The  possibility  of  exporting  stereotype  plates  or 
editions  of  standard  American  works  will  also  lessen 
the  proportion  of  first  outlay  to  be  charged  to  the 
American  edition,  and  will  enable  this  to  be  sold 
profitably  at  lower  prices  than  would  otherwise  be 
practicable.  An  example  of  the  advantage  given  to 
the  American  buyer  by  such  an  export  arrangement 
is  afforded  by  the  great  Latin  Dictionary  lately  pub- 
lished by  the  Harpers.  Duplicate  plates  of  this 
were  sold  by  the  publishers  for  the  edition  issued 
by  the  Clarendon  Press,  in  Oxford,  and  the  saving 
secured  from  the  proportion  of  the  type-setting  and 


443  THE  QUESTION   OF  COPYRIGHT. 

editorial  outlay  charged  to  the  English  edition  has 
enabled  the  American  publishers  to  sell  the  book  in 
this  market  much  more  cheaply  than  would  other- 
wise have  been  practicable. 

To  summarize — the  selling  price  of  books  de- 
pends not  on  the  copyright,  but  on  the  require- 
ments of  the  market  and  the  extent  of  the  market 
that  is  controlled  by  the  author  and  his  represent- 
ative. 

American  buyers  are  accustomed  to  cheap  books, 
and  will  not  buy  dear  books,  and  the  publishers  are 
not  likely  to  throw  away  their  money  by  making 
dear  books  for  which  they  could  not  find  a  sale. 

The  wider  the  markets  and  the  greater  the  num- 
ber of  the  editions  between  which  the  first  outlays 
can  be  divided,  the  smaller  the  cost  of  each  edition 
and  of  each  copy,  and  the  lower  the  price  at  which 
each  copy  can  be  and  will  be  supplied. 

With  assured  markets,  and  an  assured  control  to 
authors  and  publishers  of  the  results  of  their  literary 
undertakings,  there  will  be  a  great  increase  in  the 
publication  of  international  series,  which  will  pro- 
vide for  American  readers,  at  the  lowest  prices, 
satisfactory  editions  of  the  works  of  the  leading 
writers  of  the  world,  American,  English,  and  Con- 
tinental. 

New  York,  March  15,  1890.  G.  H.  P. 


XXV. 

"COPYRIGHT,"    ''MONOPOLIES,"   AND 
"PROTECTION." 

Reprinted  from  The  Literary  World. 

To  the  Editor  of  the  Literary  World : 

The  writer  of  an  editorial  in  The  Literary  World 
of  January  7th  (a  number  which,  owing  to  a  mis- 
chance, has  only  to-day  reached  my  desk),  in  refer- 
ring to  the  organization  of  the  Boston  Copyright 
Association,  speaks  of  copyright  as  a  "  species  of 
protection."     The  words  used  are  : 

"For  what  is  copyright  but  a  species  of  protection?  and  what  is 
international  copyright  but  a  bulwark  erected  by  protection  against 
free  trade?  From  this  point  of  view  the  spectacle  of  President 
Eliot  presiding  at  an  international  copyright  meeting  one  day  and 
appearing  the  next  as  a  sympathetic  guest  at  an  anti-tariff  dinner  is 
one  to  be  pondered." 

This  "  point  of  view  "  shows,  as  it  seems  to  me, 
a  confusion  of  thought  based  upon  a  misconception 
of  the  actual  meaning  of  the  terms  "  protection  " 
and  "  free  trade ; "  and  as  such  misconception  has 
before  now  stood  in  the  way  of  a  proper  understand- 
ing of  the  grounds  on  which  are  based  the  claims  of 
an  author  to  the  control  of  his  productions,  I  think 
it  worth  while  to  ask  you  to  give  me  space  to  cor- 
rect it. 

The  difficulty  is  really  due  to  the  poverty  of  our 
29 


450  THE   QUESTION   OF  COPYRIGHT. 

language,  which  uses  the  term  "  protection  "  to  ex- 
press two  entirely  different  things,  and  the  same  is 
true  of  the  terms  "  free  trade  "  and  "  monopoly," 
which  also  have  been  largely  misapplied  in  the  dis- 
cussion of  questions  of  copyright.  The  "  protec- 
tion "  for  which  the  author  asks  is  simply  his  por- 
tion of  the  benefit  of  the  machinery  organized  by 
society  for  the  defence  of  individual  property  against 
unauthorized  appropriation.  He  is  in  the  position 
of  a  gardener  whose  labor  has  produced  a  crop  of 
strawberries,  and  who,  in  order  to  retain  for  his  own 
use  the  results  of  his  labor,  asks  for  his  share  of  the 
policeman. 

In  the  sense,  however,  in  which  it  is  used  in  the 
article  in  question  the  term  stands  for  something 
entirely  different.  The  "  protection  "  to  which  your 
writer  was  referring  is  the  system  under  which  one 
producer  secures  through  legislation  the  impo- 
sition of  a  tax  upon  the  labor  of  another  producer, 
and  by  this  means  also  secures  the  privilege  of  tax- 
ing indirectly  (to  the  extent  of  any  increase  caused 
by  such  taxation  in  the  average  selling  price)  all  the 
consumers  of  the  things  produced. 

The  author,  however,  asks  for  no  legislation  of 
this  kind.  In  securing  copyright  for  his  History 
of  the  United  States,  Professor  McMaster  secures 
simply  the  control  of  the  sales  of  his  own  work. 
He  does  not  ask  the  government  to  further  the  sale 
of  his  history  by  putting  a  tax  upon  the  production 
or  the  sale  of  any  other  history  of  the  United  States, 
for  instance,  that  written  by  the  foreigner  Von 
Hoist.     The  production  of  future   histories  of  the 


"copyright"  and  "protection."       451 

United  States,  by  American  or  foreign  writers,  is 
not  going  to  be  impeded  by  any  privilege  conceded 
to  or  demanded  by  McMaster.  In  like  manner  the 
conceding  to  Justin  McCarthy,  under  an  interna- 
tional copyright,  of  the  control  of  his  History  of 
Our  Own  Times,  would,  of  course,  in  no  manner 
have  stood  in  the  way  of  the  production  of  any 
number  of  competing  histories  covering  the  same 
period. 

Mr.  Henry  Carey  Baird  takes  the  ground  that 
there  is  no  propriety  in  giving  to  Von  Hoist  the 
privilege  of  making  money  out  of  historical  facts 
and  records  which  are  the  common  property  of  all 
Americans.  Mr.  Baird  forgets,  however,  that  these 
facts  and  records  are  as  much  common  property 
after  the  publication  of  Von  Hoist's  history  as  they 
were  before.  Von  Hoist's  privilege  of  copyright 
(if  conceded)  has  not  enabled  him  to  diminish  in  any 
way  the  common  stock  of  facts  (as  the  nation's 
stock  of  acres  is  diminished,  for  instance,  by  the 
grants  to  the  Pacific  railroads).  The  stock  of  his- 
torical facts  available  for  the  use  of  future  writers 
has,  indeed,  actually  been  increased  by  Von  Hoist's 
researches  and  labors.  It  is  evident,  therefore,  that 
copyright  gives  to  the  writer  no  property  in  facts  or 
ideas,  but  simply  permits  him  to  control  the  special 
form  in  which  he  presents  these  facts  and  ideas,  and 
it  is  for  this  form  only,  and  not  for  the  ideas  them- 
selves, that  he  asks  "  protection." 

The  "  free  trader,"  in  the  accepted  signification 
of  the  term,  and  the  person  who  is  opposing  copy- 
right and  talking  about  "  free  trade  in  books,"  are 


452  THE  QUESTION   OF  COPYRIGHT. 

two  very  different  individuals.  The  former  claims 
for  each  producer  the  liberty  to  do  what  he  will  with 
that  which  he  has  produced,  such  liberty  including 
the  right  to  procure  in  exchange  for  the  same  (sub- 
ject only  to  the  taxes  necessary  for  the  support  of 
the  government  and  for  his  share  of  the  policeman) 
the  products  of  any  other  producers,  whether  fel- 
low-citizens or  not.  He  wishes,  for  instance,  to  pur- 
chase with  money  made  out  of  wheat  a  ship  built 
on  the  Clyde,  and  he  would  be  free  to  apply  in  this 
way  the  results  of  his  labor  and  thus  to  secure  fur- 
ther proceeds  from  these  results  if  it  were  not  for 
the  existence  of  an  objecting  individual  or  group  of 
individuals  in  Maine  or  Pennsylvania.  The  man  who 
talks  about  "  free  trade  in  books,"  however,  meaning 
thereby  the  right  to  appropriate  what  another  has 
produced,  aims  to  obtain  certain  proceeds  which  he 
could  not  have  secured  but  for  the  existence  and  the 
labor  of  another  man,  namely,  the  author  of  the 
material  to  be  appropriated 

In  like  manner  the  opponent  of  any  international 
copyright,  or  the  supporter  of  the  misleading  Pear- 
sall-Smith  scheme  of  "  open  publishing "  (which 
may  be  appropriately  classified  as  "  copywrong "), 
describes  as  a  "  monopoly"  the  right  of  an  author  to 
control  the  sale  of  his  productions.  The  dictionary 
justifies  him  in  such  use  of  the  word,  which  means, 
of  course,  "  single  sale,"  or  sale  controlled  by  a  single 
person.  The  term  is,  however,  at  present,  in  its 
general  use  associated  with  something  very  different, 
and  its  application  to  copyright  is  misleading  and 
unjustifiable. 


"COPYRIGHT       AND    "  PROTECTION.  453 

The  popular  understanding  of  the  term  "  monop- 
oly "  covers  the  appropriation,  under  legislation,  by 
an  individual  or  a  group  of  individuals,  of  some  por- 
tion of  the  property  of  the  community  or  of  the 
facilities  belonging  to  the  community,  which,  if  it 
were  not  for  such  legislation,  would  remain  free  to 
all.  In  this  sense  a  Pacific  railway,  to  which  has 
been  conceded  the  sole  use  of  a  route  across  the 
continent  and  the  fee  of  some  thousands  of  acres  of 
public  lands,  is  a  monopoly ;  a  horse  railway,  with  a 
charter  for  the  exclusive  use  of  certain  public  high- 
ways, is  a  monopoly;  and  a  telephone  company, 
with  a  patent  under  which  it  prevents  the  construc- 
tion of  other  telephones,  and  with  privileges,  thus 
made  exclusive,  for  the  use  of  its  wires,  of  traversing 
both  public  and  private  property,  is  a  monopoly. 
The  control  of  a  book  by  the  man  whose  labor  has 
produced  the  book  is  not  a  monopoly,  for  the  exist- 
ence of  such  a  book  does  not  in  any  degree  stand 
in  the  way  of  the  production  and  sale  of  any  num- 
ber of  books  of  the  same  character,  and  addressed 
to  the  same  class  of  readers,  and  its  production  has 
in  no  degree  lessened  the  extent  of  the  facilities  or 
of  the  property  belonging  to  the  public. 

The  importance  of  securing  at  this  time,  when 
international  copyright  is  a  matter  of  pending  legis- 
lation, the  widest  possible  understanding  of  the 
grounds  upon  which  rests  the  claim  of  the  author 
to  the  control  of  his  productions,  is  my  excuse  for 
troubling  you  with  this  letter. 

New  York,  January  30,  1888. 


XXVI. 

SUMMARY  OF  THE  EXISTING  COPYRIGHT 
LAWS  OF  THE  MORE  IMPORTANT 
COUNTRIES  OF  THE  WORLD  (January, 
1896.) 

1.  Argentine  Republic. — No  statute  for  the  protection  of  intellec- 
tual property  has  as  yet  been  enacted.  Article  17  of  the  Constitution 
of  i860  declares  that  property  is  to  be  held  inviolable,  and  that  no 
citizen  shall  be  deprived  of  the  same  except  by  process  of  law.  The 
article  proceeds  to  state  that  each  author  and  inventor  is  the  exclusive 
proprietor  of  his  production  or  invention  during  the  term  specified 
by  the  law,  but  the  law  itself  is  yet  to  be  enacted.  In  its  absence, 
authors  and  artists  secure  a  quasi-protection  under  certain  provisions 
of  the  civil  code.  The  penal  code  of  1880  contained  a  provision  for 
the  prohibition  of  literary  piracy,  with  a  penalty  for  infringement  of 
from  $25  to  $1000.  In  the  code  of  1887  this  provision  was,  however, 
omitted. 

2.  Austria  (Empire). — Law  of  1895.  Literary  and  artistic  works, 
published  during  the  life  of  the  author,  term,  during  author's  life 
and  thirty  years  after  his  death  :  Works  posthumous,  or  anony- 
mous, or  published  under  a  pseudonym,  thirty  years  from  the 
date  of  the  first  publication.  Publications  of  learned  societies 
recognized  by  the  Government,  fifty  years  from  the  date  of  the 
first  publication  ;  right  of  the  Government  reserved  to  extend  this 
term  by  special  privileges  in  favor  of  important  works  of  science  and 
art.  Exclusive  rights  of  translation  reserved  to  the  author,  on  con- 
dition of  the  publication  being  simultaneous  with  that  of  the  original  ; 
in  the  contrary  case,  free  right  of  translation  permitted  after  the  delay 
of  one  year.  Free  right  of  arrangement  of  musical  airs,  at  the  ex- 
piration of  one  year.    Exclusive  right  of  artistic  reproduction  reserved 


SUMMARY.  455 

to  the  artist,  but  on  condition  of  reproducing  the  work  within  two 
years  ;  in  contrary  case,  free  right  of  reproduction.  Dramatic  and 
musical  representations,  performed  during  the  life  of  the  author  : 
copyright  term,  during  his  life  and  thirty  years  after  his  death. 
Works  posthumous,  anonymous,  collaborated,  or  published  under  a 
pseudonym,  thirty  years  from  the  date  of  first  representation  (term 
increased,  in  1894,  from  ten  years).  Interstate  conventions,  Ger- 
many, 1867  and  1870;  Italy,  1890;  France,  1866;  Great  Britain, 
1893. 

3.  Belgium  (Kingdom). — Law  of  1886.  Works  of  literature  and 
of  art,  published  during  the  life  of  the  author,  protected  for  his  life 
and  for  fifty  years  thereafter.  (The  previous  term  was  for  life  and 
for  twenty  years.)  Posthumous  works,  fifty  years  from  date  of  issue 
or  for  works  of  art,  from  date  of  first  exhibition.  A  work  of  collabo- 
ration is  protected  for  fifty  years  from  the  death  of  the  surviving  col- 
laborator. The  author  and  his  representatives  have  full  control  of 
the  rights  of  translation  and  dramatization.  The  provisions  of  the 
law  are  applicable  to  residents  as  well  as  to  citizens.  The  condition 
of  printing  in  Belgium  which  obtained  in  the  previous  law  is  annulled. 
Belgium  was  a  party  to  the  Berne  Convention,  and  is  in  copyright  re- 
lations with  the  United  States  under  the  Act  of  1891.  Deposit  of 
three  copies — one  for  the  national  library  and  two  for  the  com- 
munal administration. 

4.  Bolivia  (Republic). — Law  of  1S79.  Term,  life  of  the  author 
and  fifty  years.  Deposit  of  three  copies — one  with  the  Minister  of 
Public  Instruction,  one  with  the  governor  of  the  district,  one  with  the 
national  library.  Concedes  copyright  to  foreigners  under  reciprocal 
conditions.  Registration  without  charge.  A  party,  since  1889,  to 
the  Convention  of  Montevideo. 

5.  Brazil  (Republic). — Law  of  1890  (enacted  under  the  Empire). 
Terms  for  literary  and  artistic  works,  published  during  the  life  of  the 
author,  life  of  author  and  ten  years  thereafter.  Works  published  by 
societies  and  corporations,  ten  years  from  the  date  of  the  first  publi- 
cation.    A  party  since  1889,  to  the  Convention  of  Montevideo. 

6.  Canada. — Term,  forty-two  years  from  date  of  publication.  De- 
posit of  two  copies.  Requirements  (with  certain  noteworthy  excep- 
tions) of  manufacture  within  the  Dominion.  Authority  vested  in 
the  Minister  of  Agriculture  to  license  the  publication  of  Canadian 
editions,  under  certain  conditions.  (See  further  summary  on  page 
467  et  sea.) 


456  THE   QUESTION   OF   COPYRIGHT. 

7.  Chili  (Republic). — Act  of  1834.  Term,  for  literary  and  artistic 
works  published  during  the  life  of  the  author,  for  his  life  and  for  five 
years  after  his  death.  Posthumous,  ten  years  from  first  publication. 
For  works  published  in  Chili  by  a  foreigner,  ten  years  from  first  pub- 
lication. Deposit  of  three  copies  in  the  library  of  Santiago,  obligatory. 
Right  of  the  Government  to  extend  these  terms.  Term,  for  dramatic 
and  musical  representations  performed  during  the  life  of  the  author, 
for  his  life,  and  for  five  years  after  his  death.  Posthumous  works, 
ten  years  from  the  date  of  the  first  representation.  Right  of  the  Gov- 
ernment to  extend  these  terms.  Has  accepted  the  Interstate  Con- 
vention of  Montevideo. 

8.  C/iitia. — In  theory,  copyright  is  perpetual.  There  is,  however, 
no  statute  on  the  subject,  and  in  practice  the  protection  of  a  literary 
production  is  hardly  practicable.  The  author  of  modern  times  is 
usually  his  own  publisher.  In  case  of  piracy  the  usual  penalty  is 
eighty  blows  with  a  stick  and  confiscation  of  the  piratical  production. 
The  protection  of  the  magistrates  can  however  be  claimed  only  for 
works  of  "  pure  literature  "  or  of  poetry.  Authors  of  political  works 
or  of  romances  can  claim  no  privileges,  and  are  in  fact  liable  to  pun- 
ishment. The  sole  dependence  for  the  author  is  the  intelligence  and 
equity  of  the  local  magistrates.  (Tcheng-Ki-Tong.  Cited  by  Lyon- 
Caen.) 

9.  Colombia. — Law  of  1886,  based  on  that  of  Spain  of  1879. 
Term,  life  of  the  author  and  eighty  years  thereafter.  Deposit  of 
three  copies,  one  with  the  Minister  of  Public  Instruction  and  two  in 
the  national  library. 

10.  Costa  Rica. — This  State  was  represented  at  the  Berne  Con- 
vention but  did  not  become  a  party  to  the  same.  No  copyright 
statute  has  yet  been  enacted.  In  1887,  a  provisional  agreement  was 
entered  into  with  the  four  other  States  of  Central  America  for  the 
recognition  of  property  in  literary  and  art  productions. 

11.  Denmark. — Law  of  1868.  Term,  for  literary  works  pub- 
lished during  the  life  of  the  author,  during  his  life  and  for  fifty  years 
thereafter.  (Formerly  life  and  thirty  years.)  Anonymous,  col- 
laborated works,  and  works  published  under  a  pseudonym,  fifty 
years  from  date  of  publication.  Art  works  published  during  the  life 
of  the  author,  for  his  life  and  for  thirty  years  thereafter.  Dramatic 
and  musical  works  first  represented  during  the  life  of  the  author, 
for  his  life  and  for  thirty  years  thereafter.  The  control  of  the  author 
terminates  however,  if  no  representation  of  the  work  has  been  made 


SUMMARY.  457 

during  the  five  years.  Interstate  conventions.  Admission  of  the 
principle  of  reciprocity.  Convention  with  France  in  1866,  with  the 
United  States  in  1S91. 

12.  Ecuador. — Law  of  1887.  Term,  life  of  the  author  and  fifty 
years  thereafter.  Deposit  of  three  copies,  one  for  the  library  of  the 
province,  one  for  the  national  library,  and  one  for  the  Minister  of 
Public  Instruction. 

13.  Egypt. — No  general  law  has  yet  been  enacted.  Cases  of 
copyright  are  decided  by  the  judges  "  according  to  the  principles 
of  natural  art  and  the  rules  of  equity."  On  this  basis,  the  Court 
of  Appeals  in  Alexandria  has,  since  1887,  given  several  decisions 
in  favor  of  the  protection  of  productions  in  art,  music,  and  litera- 
ture. In  these  decisions  no  term  of  copyright  has  been  specified 
or  referred  to.  They  may,  therefore,  be  compared  to  the  deci- 
sions in  the  English  courts,  prior  to  the  statute  of  1 7 10,  under 
which  decisions  copyright  was  assumed  to  exist  under  the  common 
law  and  in  perpetuity. 

14.  Finland  (Grand  Duchy). — Act  of  1880.  The  term  is  for  the 
life  of  the  author  and  fifty  years  thereafter.  Privileges  of  copyright 
extended  not  only  to  citizens  but  to  residents  who  make  publication 
in  the  country.  Deposit  of  two  copies.  The  law  is  in  substance 
identical  with  that  of  Russia,  but  differs  in  certain  details. 

15.  France  (Republic). — Act  of  the  Corps-Legislatif  (of  the  Em- 
pire), of  July  14,  1866,  approved  by  Napoleon,  Emperor.  The 
duration  of  term  of  copyright,  accorded  under  previous  legislation, 
for  the  works  of  authors,  artists,  and  composers,  is  extended  from 
the  lifetime  of  the  author  and  thirty  years,  to  the  lifetime  and  fifty 
years,  whether  for  widow,  children,  direct  heirs,  indirect  heirs,  lega- 
tees, or  assigns.  In  the  cases  in  which  the  estate  of  the  deceased 
author  becomes  the  property  of  the  State,  the  copyright  is  terminated 
with  the  death  of  the  author,  and  the  work  falls  into  the  public  do- 
main. Works  published  posthumously  are  subject  to  the  same  term 
of  copyright  as  obtains  for  those  published  during  the  lifetime  of  the 
author.  Authors  who  are  citizens  or  residents  of  other  States  enjoy, 
for  works  first  published  in  France,  the  same  rights  and  term  of  copy- 
right as  those  given  to  French  authors.  (This  provision  is  met  by 
simultaneous  publication.)  Two  copies  of  all  works  copyrighted 
must  be  deposited  at  the  Ministry  of  the  Interior,  or  (for  transmis- 
sion) at  the  prefectures  of  the  departments.  The  same  regulations 
and  the  same  term  of  copyright  apply  in  the  cases  of  works  of  art. 


458  THE   QUESTION   OF   COPYRIGHT. 

The  term  of  copyright  is  also  the  same  for  dramatic  and  musical 
compositions,  and  no  representation  of  such  compositions  can  be 
given  without  the  written  permission  of  the  authors  or  composers. 
The  conditions  of  international  copyright  have  been,  since  1887, 
regulated  by  the  provisions  of  the  Convention  of  Berne.  In  addition 
to  the  States  with  which  it  is  in  relation  through  the  Berne  Conven- 
tion, France  has  entered  into  literary  conventions  with  the  following 
states  which  are  not  parties  to  the  Berne  Convention :  Austria, 
Hungary,  1886  ;  Bolivia,  1888  ;  Holland,  1856  ;  Mexico,  1SS6  ; 
Portugal,  1866  ;  Russia,  1861  (this  convention  was  cancelled  by 
Russia  in  18S7  and  has  not  since  been  renewed)  ;  Salvador,  1880  ; 
Sweden  and  Norway,  18S4  ;  United  States,  1891. 

16.  Germany, — Law  of  the  Empire,  June  11,  1870.  This  law 
applied  to  all  the  states  of  the  Empire  except  Bavaria.  It  was  ap- 
plied to  Bavaria  January  I,  1872,  and  to  Alsace-Lorraine,  January 
1,  1S73.  Registration  of  copyright  is  made  at  Leipsic.  Deposit  of 
a  single  copy.  Term,  for  literary  and  artistic  works  published  during 
the  life  of  the  author,  is  for  his  life  and  thirty  years  thereafter. 
Posthumous  and  anonymous  works  and  works  published  under  a 
pseudonym,  thirty  years  from  the  date  of  the  first  publication.  Pub- 
lications of  learned  societies,  thirty  years  from  the  date  of  first  publi- 
cation. Dramatic  and  musical  productions,  ten  years  from  the  first 
representation,  provided  the  work  represented  has  not  before  been 
printed.  No  protection  is  given  under  this  heading  for  anonymous 
productions.  The  Empire  is  a  party  to  the  Berne  Convention.  On 
January  15,  1892,  a  copyright  convention  was  completed  with  the 
United  States  under  which  Germany  accepted  the  provisions  of 
the  American  Act  of  1891.  Under  this  convention,  the  citizens  of 
the  United  States  possess  in  Germany  the  same  privileges  that  belong 
under  the  German  act  to  the  citizens  and  residents  of  the  Empire. 
In  like  manner,  the  privileges  possessed  in  the  United  States  under 
the  American  act  by  American  citizens  and  residents  are  extended  to 
the  citizens  of  Germany.  The  criticism  was  at  once  made  in  Ger- 
many, and  has  since  been  repeated  with  increasing  acerbity,  that  this 
arrangement  did  not  constitute  an  equitable  reciprocity,  and  was 
much  to  the  disadvantage  of  the  German  producers  of  copyright 
property.  The  provisions  in  the  American  law  making  copyright 
conditional  on  simultaneous  publication  and  on  the  manufacturing  of 
the  work  in  the  United  States,  place  serious  obstacles  in  the  way  of 
German  writers  desiring  to  secure  for  their  works  American  copy- 


SUMMARY.  459 

right.  Similar  complaints  are  being  made  with  equal  justice  on 
behalf  of  the  authors  of  France  and  Italy.  The  condition  of  simul- 
taneous publication,  while  creating  occasional  differences  in  the  case 
of  English  authors,  becomes  of  necessity  much  more  serious  when 
arrangement  must  be  made  not  only  for  publication  and  for  printing 
but  also  for  translating. 

17.  Great  Britain. — The  law  at  present  in  force  in  Great  Britain 
is  in  substance  that  enacted  in  1842.  While  this  law  has  been 
amended  in  certain  of  its  details,  the  main  provisions,  including  the 
term  of  protection  for  literary  property,  remain  as  in  the  original  act. 
A  summary  of  the  existing  laws  together  with  the  digest  prepared  by 
Sir  James  Stephen,  will  be  found  in  a  previous  division  of  this 
volume.  The  term  of  copyright  covers  the  life  of  the  author  and 
seven  years  thereafter,  or  a  period  of  forty-two  years  from  the  date  of 
publication  of  the  work,  whichever  term  be  the  longer.  A  deposit 
of  five  copies  is  required,  one  for  the  British  Museum,  and  one  for 
each  of  the  four  libraries  designated  in  the  Act.  Registration  is  not 
compulsory.  Great  Britain  is  a  party  to  the  Berne  Convention.  In 
addition  to  the  states  with  which  it  is  in  relation  through  the  Berne 
Convention,  Great  Britain  has  entered  into  literary  conventions  with 
the  following,  which  are  not  parties  to  the  Berne  Convention  :  Aus- 
tria-Hungary, 1893  ;  Brazil,  1884  ;  Dominican  Republic,  1894  ; 
Mexico,  1S93  ;  Netherlands,  1884  ;  Netherlands,  East  India  Colo- 
nies, 18S8  ;  Netherlands,  Curacoa,  Surinam,  etc.,  1890;  Paraguay, 
18S6;  Portugal,  1884;  Servia,  1884;  Sweden  and  Norway,  1895; 
Uraguay,  1886;  United  States,  1891. 

18.  Greece  (Kingdom). — Law  of  1833  ;  amended  in  1867.  Literary 
and  artistic  works,  term,  fifteen  years  from  the  date  of  first  publica- 
tion. Right  of  the  Government  to  extend  this  term.  Admission  of 
the  principle  of  reciprocity.     Deposit  of  two  copies. 

19.  Guatemala  (Republic). — Law  of  1879  ;  copyright  is  recognized 
under  this  law  as  existing  in  perpetuity  for  the  author,  the  heirs  of 
the  author,  or  their  assignees. 

20.  Hawaii  (Republic). — Law  of  1888  (enacted  under  the  king- 
dom). Term,  twenty  years  from  the  date  of  publication.  Deposit  of 
one  copy.  Registration  fee  of  $5  to  be  paid  to  the  Minister  of  the 
Interior. 

21.  Hayti  (Republic). — Law  of  1885  Term,  for  the  life  of  the 
author,  and  if  the  copyright  be  inherited  by  the  children  of  the 
author,  for  twenty  years  thereafter.     If  the  inheritance  goes  to  heirs 


460  THE   QUESTION   OF   COPYRIGHT. 

other  than  children  or  to  assignees  of  the  author,  the  term  is  for  ten 
years  from  the  author's  death.  Deposit  of  two  copies.  A  party  to 
the  Convention  of  Berne. 

22.  Holland  (Kingdom).— Law  of  1881.  Term,  for  printed  works 
printed  within  the  lifetime  of  the  author,  fifty  years  from  date  of  pub- 
lication of  first  edition  (former  term,  life  of  the  author  and  twenty 
years).  Obligation  to  print  the  work  within  the  kingdom  and  to  de- 
posit two  copies  with  the  Minister  of  Justice.  Term,  for  works  not 
printed  during  the  life  of  the  author,  thirty  years  from  the  date  of  his 
death.  Conventions  with  Belgium,  1858,  and  with  France,  1855, 
i860,  and  1884. 

23.  Hungary  (Kingdom).— Law  of  1887.  Term,  life  of  the  author 
and  fifty  years  thereafter.  Posthumous  works,  fifty  years  from  the 
death  of  the  author.  Residents  other  than  citizens  who  make  first 
publication  in  the  country  are  entitled  to  the  privileges  of  the  law. 
Deposit  of  two  copies  with  the  Minister  of  Agriculture. 

24.  Honduras  (Republic).— The  Civil  code  of  1 880  contains  the  dec- 
laration that  the  productions  or  inventions  of  the  mind  are  the  prop- 
erty of  the  producers.    No  copyright  statute  has  as  yet  been  enacted. 

25.  Italy  (Kingdom).— Law  of  1882.  Works  of  literature  and  art 
published  during  the  lifetime  of  the  author  :  term,  during  his  life  and 
forty  years  from  date  of  first  publication.  At  the  close  of  that  term 
the  works  are  open  to  publication  ;  but  during  the  second  term  of 
forty  years,  the  publishers  must  pay  to  the  owner  of  the  copyright  a 
royalty  of  five  per  cent.  Term  for  musical  and  dramatic  composi- 
tions, eighty  years  from  the  first  presentation.  Exclusive  right  of 
translation  reserved  to  author,  and  of  reproduction  to  the  artist,  for  a 
term  of  ten  years.  Deposit  of  two  copies  with  the  Prefect  of  the 
Province.  Publication  of  the  State  and  of  learned  societies  :  term, 
twenty  years  from  the  date  of  issue.  The  term  for  musical  and 
dramatic  compositions,  the  same  as  for  works  of  literature  ;  such 
compositions,  are,  however,  open  to  any  one  to  produce  or  present  on 
the  payment  of  a  royalty  or  proportion  of  profits.  International  con- 
ditions subject  to  the  Convention  of  Berne.  Copyright  relations  with 
the  United  States  since  October  31,  1892,  under  the  Act  of  1891. 

26.  Japan  (Empire). — Act  of  1887.  Term,  life  of  the  author  and 
five  years  thereafter,  or  thirty-five  years  from  the  date  of  publication 
(whichever  term  be  the  longer),  for  works  of  literature,  art,  and  music. 
Fee  for  registration,  the  equivalent  of  the  price  of  six  copies  of  the 
work.     Term,  for  photographs,  ten  years  from  date  of  registration. 


SUMMARY.  461 

The  Government  has  under  consideration  (December,  1895)  accept- 
ance of  the  Convention  of  Berne. 

27.  Luxembourg  (Grand  Duchy). — Act  of  181 7.  Term,  life  of  the 
author  and  twenty  years.     Has  accepted  the  Convention  of  Berne. 

28.  Mexico  (Republic).— Act  1871.  The  copyright  of  new  literary 
productions  is  made  perpetual  (the  former  term  having  been  life  of 
the  author  and  ten  years  thereafter),  and  the  author  possesses  the 
same  rights  in  regard  to  its  assignment  and  alienation  as  obtain  in 
the  case  of  material  property.  The  heirs  and  assigns  succeed  to  the 
full  rights  of  the  original  producers,  retaining  control  in  perpetuity. 
In  case  the  author,  having  assigned  the  copy  of  a  work,  has  later  re- 
shaped such  work,  making  changes  that  are  "  substantial  and  mate- 
rial," he  will  be  at  liberty,  as  if  it  were  a  new  work,  to  control  the 
copyright  of  the  same,  without  prejudice,  however,  to  the  ownership 
of  the  copyright  of  the  work  as  first  issued.  The  term  of  a  dramatic 
production,  covering  stage  rights,  is  for  the  life  of  the  author  and 
thirty  years.  Of  works  of  literature  and  of  art  a  deposit  of  two 
copies  is  required,  one  in  the  national  library,  and  one  in  the  archives 
of  the  Minister  of  Instruction.  Works  of  art  may  be  deposited  in  the 
form  of  a  photograph  or  reproduction  of  the  original  design.  Copy- 
right is  granted  to  residents  as  well  as  to  citizens.  The  principle  of 
reciprocity  is  accepted. 

29.  Monaco  (Principality). — Ordinance  of  1889.  Term,  life  of  the 
author  and  fifty  years.     A  party  to  the  Convention  of  Berne. 

30.  Montenegro  (Principality). — Act  of  1889.  Term,  life  of  the 
author  and  thirty  years  thereafter.   Accepts  the  Convention  of  Berne. 

31.  Norway  (Kingdom). — Act  of  1876.  Term,  for  works  of  litera- 
ture and  art,  life  and  fifty  years  (former  terms,  life  and  twenty  years). 

32.  Paraguay  (Republic). — The  law  of  1862,  passed  under  the  rule 
of  the  Dictator  Lopez,  has  fallen  into  desuetude,  and  the  record  and 
text  of  the  Act  have  been  lost.     No  statute  is  at  this  time  in  force. 

33.  Peru  (Republic). — Law  of  1849.  Term,  for  literature  and  for 
art,  life  and  twenty  years  thereafter.  Posthumous  works,  thirty 
years  from  date  of  publication.  Deposit  of  one  copy  in  the  national 
library. 

34.  Porhigal  (Kingdom). — Act  of  1867.  Term,  for  literature  and 
for  art,  life  of  the  author  and  fifty  years  thereafter.  (Formerly, 
twenty  years.)  The  term  for  a  translation  of  a  work,  the  original  of 
which  is  out  of  copyright,  covers  (for  the  translator's  version  only) 
thirty  years  from  date  of  publication.     Publications  of  societies,  fifty 


462  THE   QUESTION   OF   COPYRIGHT. 

years  from  date  of  publication.  Works  published  in  series,  fifty 
years  for  each  division  or  volume  from  date  of  publication  of  such 
division.  Of  works  of  literature,  a  deposit  of  two  copies  is  required 
in  the  royal  library  in  Lisbon  ;  for  a  work  of  art  one  copy  of  a  repro- 
duction must  be  deposited  in  the  Academy  of  Fine  Arts.  The  term 
for  posthumous  works  is  twenty-five  or  fifty  years  from  date  of  first 
publication,  according  to  the  class.  The  Government  reserves  the 
right  to  authorize  for  the  service  of  the  public,  and  in  consideration 
of  the  payment  of  an  indemnity  to  the  owner,  the  publication  of  the 
abridgment  of,  or  of  extracts  from,  works  which  are  still  protected 
by  copyright.  Dramatic  and  musical  representations  performed  dur- 
ing the  life  of  the  author,  term,  during  his  life  and  thirty  years  there- 
after. Posthumous  works,  thirty  years  from  date  of  first  publication. 
Unless,  however,  there  be  stipulation  to  the  contrary,  each  theatre, 
after  the  death  of  the  author,  is  free  to  make  presentation  of  his  works 
on  payment  of  a  fixed  honorarium.  A  remuneration  is  due  to  the 
Royal  Conservatory  for  representing  translated  dramatic  works  which 
have  fallen  into  the  public  domain.  Admission  of  the  principle  of 
reciprocity.  Conventions  with  Belgium,  1866;  France,  1851  and 
i860  ;  Spain,  i860  ;  and  the  United  States,  1S94. 

35.  Russia  (Empire). —  Exclusive  of  Finland.  Act  of  1857. 
Works  of  literature  published  during  the  life  of  the  author  ;  term, 
for  his  life  and  fifty  years  after  his  death  (formerly  life  and  thirty 
years).  Posthumous  works,  fifty  years  from  the  date  of  the  first  pub- 
lication. Learned  societies,  fifty  years  from  the  date  of  the  first 
publication.  Deposit  of  two  copies,  one  with  the  Bureau  of  Censor- 
ship and  one  in  the  imperial  library.  The  supervision  of  the  copy- 
right regulations  rests  with  the  minister  or  Intendant  of  the  Palace 
(Le  minislre  de  la  Maisou).  The  control  of  the  censorship  (upon 
which  copyright  is  conditioned)  is  placed  with  the  Bureau  of  Censor- 
ship. For  scientific  books,  there  is  a  special  provision  in  the  law 
under  which  the  exclusive  right  of  translation  is  reserved  to  the  author 
with  the  condition  that  the  announcement  of  the  reservation  be 
printed  in  the  original  volume,  and  that  the  translation  be  published 
within  three  years.  Russian  authors  retain  for  their  works  first  pub- 
lished in  foreign  countries  the  control  of  the  Russian  copyright.  It 
is  obligatory  to  make  registration  of  works  of  art.  The  reproduction 
in  sculpture  of  a  design  originally  produced  in  painting  or  the  con- 
verse is  not  considered  to  be  an  infringement  of  the  artist's  copyright. 
The  author  of  a  work  of  literature  who  prints  notice  of  the  reserva- 


SUMMARY.  463 

tion  of  such  rights  controls  the  dramatization  of  his  production. 
Dramatic  and  musical  representations  can  be  made  only  with  the 
consent  of  the  authors  or  composers  of  the  works.  Convention  with 
Belgium,  1862.  A  convention  made  with  France  in  1S61  was  can- 
celled in  1887.  French,  English,  and  German  works  are  "  appropri- 
ated" at  the  convenience  of  Russian  publishers.  There  is,  however, 
a  considerable  importation  of  the  authorized  editions  of  the  current 
publishers  of  all  three  countries. 

36.  Salvador  (Republic). — No  copyright  statute.  The  civil  code 
of  1880  declares  that  the  productions  of  the  mind  are  the  property  of 
the  producers. 

37.  Servia  (Kingdom). — Copyright  law  similar  in  general  terms  to 
that  of  Austria-Hungary  is  at  this  time  (January,  1896)  under  con- 
sideration. 

38.  South  African  Republic  (The  Transvaal). — Law  of  1887. 
Term,  fifty  years  from  date  of  publication. 

39.  Spain  (Kingdom). — Act  of  1879.  Term,  life  and  eighty  years 
(formerly  life  and  fifty  years),  provided  that  the  author  is,  at  the  time 
of  his  death,  in  possession  of  his  copyrights,  and  provided,  further, 
that  he  leaves  direct  heirs.  In  case  the  copyright  has  been  assigned 
by  the  author,  the  assignee  retains  control  for  the  life  of  the  author 
and  for  twenty-five  years  thereafter,  after  which  term  it  reverts  to 
the  heirs,  who  have  control  for  a  further  term  of  twenty-five  years. 
This  term  covers  the  cases  of  original  works  in  literature  and  art, 
collections  of  discourses  and  translations  (in  verse)  of  original  works 
in  modern  languages,  published  during  the  life  of  the  author.  For 
discourses,  sermons,  and  newspaper  articles  that  are  not  united  in 
collections  published  during  the  life  of  the  author,  the  term  is  for  his 
life  and  twenty-five  years  thereafter,  but  with  no  exclusive  privilege 
of  translation.  Anonymous  works  and  those  published  under  a 
pseudonym,  term,  during  the  life  of  the  editor,  and  for  fifty  or 
twenty-five  years  after  his  death,  according  to  the  class  of  the  work, 
as  above.  Works  of  learned  societies,  fifty  years  from  date  of  the 
first  publication.  Unedited  MSS.,  twenty-five  years  after  the  date 
of  the  first  publication.  Posthumous  works,  fifty  or  twenty-five 
years  after  date  of  first  publication,  according  to  the  class.  The 
Government  reserves  the  right  to  authorize,  "  for  the  service  of  the 
public,"  the  publication  of  abridgments  of,  or  extracts  from,  works 
constituting  private  property,  in  consideration  of  an  indemnity.  De- 
posit of  three  copies  is  required,  one  for  the  library  of  the  Province, 

29 


464  THE  QUESTION  OF  COPYRIGHT. 

one  for  the  Minister  of  Instruction,  and  one  for  the  national  library. 
Spanish  authors  retain  the  right  of  property  in  works  originally  pub- 
lished by  them  in  foreign  countries.  The  term  for  representations, 
dramatic  and  musical,  performed  during  the  life  of  the  author,  is  for 
his  life  and  twenty-five  years  thereafter.  The  term  of  copyright  in- 
stituted by  Spain  is  the  longest  adopted  in  any  State  excepting  Mexico 
and  Venezuela.  Spain  is  a  party  to  the  Berne  Convention,  and  has 
also  entered  into  international  copyright  relations  with  the  United 
States,  under  the  Act  of  1891.  It  has  conventions  in  force  with  Hol- 
land and  with  Portugal. 

40.  Sweden  (Kingdom). — Act  of  1S77.  Term,  for  works  of  liter- 
ature, life  and  fifty  years  (formerly  life  and  twenty  years)  ;  for  works 
of  art,  life  of  the  producer  and  ten  years. 

41.  Switzerland  (Republic). — Act  of  1883.  Term,  life  of  the 
author  and  thirty  years  (formerly  life  or  thirty  years,  whichever  term 
were  the  longer).  Swiss  authors  retain  their  property  rights  for 
Switzerland  in  works  originally  issued  in  foreign  lands,  on  condition 
of  their  making  registration  of  the  same  and  of  depositing  a  copy  in 
the  national  library.  Switzerland  is  a  party  to  the  Convention  of 
Berne,  and  has  copyright  relations  with  the  United  States  dating  from 
July,  1891. 

42.  Tunis  (Principality). — Law  of  18S9.  Term,  the  life  of  the 
author  and  fifty  years.     A  party  to  the  Convention  of  Berne. 

43.  Turkey  (Empire). — Firmans  of  1872,  1875,  188S.  The 
legislation  of  Turkey  still  retains  for  the  protection  of  literary  prop- 
erty the  medioeval  system  of  privileges.  The  author  secures  on 
application,  a  protection  for  his  work  for  life  or  for  a  term  of  forty 
years  from  the  date  of  publication.  Copyright  for  the  unexpired 
term  can  be  assigned  or  bequeathed.  The  right  to  control  a  transla- 
tion must  be  specified.  The  term  for  the  translation  is  twenty  years 
from  the  date  of  publication.  An  authorization  for  publication  (con- 
stituting a  censorship's  permit)  must  be  secured  from  the  Minister  of 
Instruction.  Deposit  of  two  copies,  one  for  the  Minister  of  Instruc- 
tion and  one  for  the  Government  of  the  Province. 

44.  Uruguay  (Republic). — No  copyright  statute  as  yet  enacted. 
The  civil  code  of  1868  declares  that  the  productions  of  the  mind  are 
the  property  of  the  producer. 

45.  United  States  (Republic). — Law  of  July,  1870,  and  March, 
1891,  amended,  March,  1895.  (For  details  of  these  statutes  see 
separate  chapter.)     The  term  for  works  of  literature  and  for  works  of 


SUMMARY.  465 

art  is  for  twenty-eight  years  from  the  date  of  registration  and  publi- 
cation. If  at  the  end  of  that  term  the  author  or  the  author's  widow 
or  children  be  living  and  an  application  is  made  for  the  purpose,  the 
copyright  is  extended  for  a  further  term  of  fourteen  years,  making 
forty-two  years  in  all.  Under  the  Act  of  1S91,  the  United  States  has 
entered  into  copyright  relations  in  July  1891,  with  Belgium,  France, 
Great  Britain,  and  Switzerland  ;  in  1S92,  with  Italy  ;  in  1893,  with 
Portugal  and  Denmark  ;  and  in  1895,  with  Spain.  In  1892,  a  copy- 
right convention  or  treaty  was  put  into  effect  with  Germany. 

46.  Venezuela  (Republic). — Act  of  1S80.  The  term  is  in  per- 
petuity for  the  author  and  his  heirs.  (Previous  term,  life  and  fourteen 
years.)  If  the  copyright  has  been  assigned,  the  control  of  the  pro- 
ducer ceases  twenty-five  years  after  the  death  of  the  author,  and  the 
property  reverts  to  the  heirs  for  perpetuity.  A  deposit  of  four  copies 
is  required,  one  for  the  local  institute  of  the  province,  one  for  the 
Minister  of  Instruction,  one  for  the  library  of  the  University  of  Car- 
acas, and  one  for  the  Academy  of  Venezuela.  A  party  to  the  Con- 
vention of  Montevideo. 


It  will  be  noted  from  the  above  summary  that  practically  all  the 
literature-producing  States  of  the  world  have  now  in  force  measures 
for  the  protection  of  literary  property.  The  Argentine  Republic  is  in 
fact  the  only  country  with  any  considerable  educated  population  in 
which  no  copyright  statute  has  yet  been  enacted.  The  state  with  the 
shortest  term  of  copyright  is  Greece,  and  next  to  Greece  comes  the 
United  States.  The  states  giving  protection  in  perpetuity  are  Mexico 
and  Venezuela.  The  states  giving  the  longest  statutory  term  of  pro- 
tection are  Spain  and  Italy.  There  has  been  during  the  past  twenty- 
five  years  a  steady  tendency  for  the  increase  of  the  term  of  the  copy- 
right. The  term  that  is  now  accepted  by  the  majority  of  the  states 
of  Europe  is  the  life  of  the  author  and  fifty  years  thereafter.  The 
theory  of  this  term  is  that  it  gives  to  the  author  an  incentive  for  pro- 
ducing property  for  the  enjoyment  of  his  children  and  his  grandchil- 
dren, with  the  possibility  also  of  future  enjoyment  by  the  great- 
grandchildren. Beyond  that  term,  the  interest  of  the  public  at  large 
in  securing  the  widest  distribution,  at  the  least  cost,  of  literature  of 
permanent  value,  is  assumed  to  offset  such  attenuated  interest  as  an 
author  may  be  supposed  to  retain  in  the  remote  progeny  beyond  the 
30 


466  THE   QUESTION   OF   COPYRIGHT. 

generation  of  his  grandchildren.  The  steps  that  are  now  being  taken 
to  extend  the  term  of  copyright  in  Great  Britain,  the  country  in 
which,  as  in  the  United  States,  the  present  term  is  very  much  shorter 
than  has  been  accepted  as  equitable  for  the  rest  of  Europe,  are  speci- 
fied in  a  preceding  chapter.  I  trust  that  it  may  be  practicable  in 
later  editions  of  this  volume  to  make  reference  to  some  similar  efforts 
for  the  extension  of  literary  property  in  the  United  States. 


XXVII. 
THE  STATUS  OF  CANADA,  JANUARY,  1896. 

The  position  of  Canada  in  regard  to  its  copyright 
relations  with  Great  Britain  and  with  the  States  with 
which  the  British  Government  has  entered  into  copy- 
right conventions,  has  for  some  years  been  an  anoma- 
lous one.  The  authorities  of  the  Home  government 
have  heretofore  maintained  that  copyright  was  a 
matter  belonging  to  imperial  control,  and  that  the 
British  copyright  legislation  and  the  British  conven- 
tions with  foreign  states  were  to  be  held  as  binding 
upon  all  the  territories  and  colonies  of  the  Empire. 
With  this  understanding,  the  representatives  of  Great 
Britain  at  the  Convention  of  Berne  accepted  the  pro- 
visions of  that  Convention  for  Great  Britain  and  for 
all  the  British  colonies.  The  Dominion  of  Canada 
has,  however,  declined  to  be  bound  by  the  action  of 
the  Home  government.  It  is  the  Canadian  view 
that  both  copyright  and  patent-right  are  matters 
which  belong  properly  within  the  control  of  the 
Dominion.  Acting  on  this  contention,  the  Do- 
minion government  gave  but  a  provisional  assent 
to  the  Convention  of  Berne,  reserving  the  right  to 


468  THE   QUESTION   OF   COPYRIGHT. 

withdraw  after  a  year's  notice,  and  such  notice  has 
since  been  given. 

The  House  of  Lords  held  in  1868,  in  the  case  of 
Routledge  vs.  Low,  that  a  copyright  existing  in  the 
United  Kingdom,  is  valid  throughout  all  parts  of 
the  British  dominions,  even  though  there  may  be 
colonial  statutes  dealing  with  the  same  subject. 
Under  the  colonial  copyright  act  of  1847,  known 
as  the  Foreign  Reprints  Act,  it  was  provided  that 
upon  a  British  possession  passing  an  Act  or  ordi- 
nance sufficient  for  the  purpose  of  securing  to  British 
authors  reasonable  protection  within  such  posses- 
sions, it  should  be  lawful  for  her  Majesty,  by  an 
Order  in  Council,  to  declare  the  prohibition  against 
the  importation  of  foreign  books  suspended  for 
such  territory.  This  provision  became  applicable 
to  Canada  in  1858.  After  that  date,  reprints  from 
the  United  States  of  English  copyright  books  could 
be  imported  into  the  Dominion  on  the  payment  of 
an  import  duty  of  12^  per  cent.,  the  receipts  from 
which  duty  were  to  be  transmitted  to  the  several 
authors  concerned.  According  to  the  testimony  of 
the  English  authors,  however,  their  receipts  from 
this  source  have  been  very  inconsiderable.  This 
duty  has  since  been  changed  to  one  of  12^  cents 
per  pound. 

In  1S89,  a  copyright  act  was  passed  by  the  Legis- 
lature of  the  Dominion  of  which  the  main  provisions 
were  as  follows : 

1.  The  control  of  the  copyright  of  works  of  litera- 
ture or  of  art  was  given  for  a  term  of  twenty-eight 
years  to  residents  of  the  Dominion  or  of  any  portion 


THE   STATUS   OF   CANADA.  469 

of  the    British    Empire,   subject  to   the   conditions 
specified. 

2.  The  work  so  copyrighted  must  be  printed  or 
produced  within  the  territory  of  the  Dominion,  within 
one  month  after  the  date  of  production  in  the  coun- 
try of  origin,  and  must  be  duly  registered  in  the 
office  of  the  Minister  of  Agriculture. 

3.  In  case  within  this  term  of  one  month  no  Cana- 
dian edition  should  be  produced  by  the  author  or  his 
representative,  the  work  shall  be  opened  to  produc- 
tion by  any  Canadian  resident  who  shall  obtain 
a  license  for  the  purpose  from  the  Minister  of 
Agriculture. 

4.  A  license  was  to  be  granted  to  any  applicant 
who  should  agree  to  pay  to  the  author  or  to  his 
representatives  a  royalty  of  ten  per  cent,  on  the 
retail  price  of  each  copy  printed  or  issued,  and  who 
should  give  to  the  Minister  of  Agriculture  satisfac- 
tory security  for  such  payments.  Such  license  was 
to  convey  no  exclusive  rights  to  the  work,  and 
was  not  to  prevent  the  importation  of  any  other 
authorized  editions. 

The  British  authors  made  strong  and  continued 
protests  against  an  Act  which  would  take  out  of  their 
hands  the  privilege  of  selecting  their  own  publishers 
for  the  Dominion,  and  which  was  likely  to  work 
mischief  with  their  relations  with  the  publishers  of 
their  authorized  editions  in  the  United  States.  After 
the  American  Act  of  1891  had  secured  for  British 
authors  copyright  in  the  United  States,  their  opposi- 
tion became  still  more  determined  against  a  measure 
which  was  certain  to  bring  their  American  copyright 


470  THE   QUESTION   OF   COPYRIGHT. 

into  peril.  The  Imperial  government  refused  to  give 
its  approval  to  the  Canadian  Act,  and  after  an  acri- 
monious correspondence  between  the  Canadian  au- 
thorities and  the  Colonial  office,  which  extended 
over  a  number  of  years,  the  Act  was,  in  1895,  finally 
withdrawn. 

In  1895,  at  the  instance  of  Mr.  Hall  Caine  and  of 
Mr.  F.  R.  Daldy,  who  came  to  Canada  as  the  repre- 
sentatives of  the  Colonial  office  and  of  the  British 
Society  of  Authors,  a  new  act  was  framed  in  Ottawa 
which  is  expected  to  secure  the  approval  of  the 
British  Government,  and  which  will  in  that  case 
go  into  effect  in  1896.  Its  chief  provisions  are  as 
follows : 

1.  The  work  securing  Canadian  copyright  must  be 
printed  in  the  Dominion,  but  the  importation  of 
plates  is  permitted.  (In  the  American  Act  such  im- 
portation is  prohibited.) 

2.  The  term  is  made  forty-two  years  from  date  of 
publication. 

3.  The  registration  in  Ottawa  must,  for  a  book  not 
originating  in  Canada,  be  made  simultaneous  with 
the  registration  in  the  country  of  origin. 

4.  Three  copies  of  the  copyrighted  book  must  be 
delivered  at  Ottawa. 

5.  The  Canadian  edition  must  be  produced  within 
sixty  days  of  the  date  of  registration,  but  the  Minister 
of  Agriculture  may,  for  sufficient  cause,  allow  an  ex- 
tension to  ninety  days. 

6.  From  the  day  of  registration,  the  importation 
of  copies  of  any  edition  other  than  one  produced 
within  the  United  Kingdom  must  cease.     Copies  of 


THE   STATUS   OF   CANADA.  47 1 

a  British  edition  can  continue  to  be  imported  during 
the  term  of  sixty  or  of  ninety  days  within  which 
term  the  Canadian  edition  must  be  in  readiness. 

7.  Copyright  can  be  secured  in  Canada  by  the 
citizens  of  any  country  which  grants  cop3'right  to 
citizens  of  the  British  Empire. 

8.  The  English  or  foreign  author,  or  his  represen- 
tative (usually,  of  course,  the  English,  American,  or 
Continental  publisher),  has  the  option  either  of  him- 
self producing  the  Canadian  edition,  or  of  leaving 
such  edition  to  be  produced  by  a  Canadian  publisher, 
acting  under  a  license. 

9.  In  case,  within  the  term  specified,  no  edition 
has  been  produced  by  the  author's  representative, 
the  Minister  of  Agriculture  shall  be  at  liberty  to 
issue  a  license  to  a  Canadian  applicant,  but  not  more 
than  one  license  shall  be  in  force  at  any  one  time. 
The  licensee  shall  pay  to  the  author  through  the 
Department  of  Inland  Revenue,  a  royalty  of  ten 
per  cent.,  making  payment  in  advance  on  the  print- 
ing of  such  edition,  the  editions  thus  paid  for  to 
comprise  not  less  than  500  copies.  Each  copy  on 
which  royalty  has  been  paid  is  to  be  stamped  by  the 
Department  of  Inland  Revenue. 

10.  Copyright  books  going  out  of  print  must  be 
reprinted  within  sixty  days,  otherwise  a  license  may 
be  issued. 

11.  Books  published  under  license  are  to  be  printed 
within  thirty  daj^s  after  issue  of  license,  but  the  Minis- 
ter may  for  adequate  cause  allow  an  extension  of 
thirty  days. 

12.  An  author  has  the  privilege  of  arranging  for 


472  THE   QUESTION  OF  COPYRIGHT. 

exclusive  serial  publication  in  Canada,  and  if  he  fail 
so  to  do,  application  may  be  made  to  the  Minister 
for  a  license  to  publish  serially.  Serial  license  car- 
ries with  it  no  right  to  publish  the  material  in  any 
other  form. 

The  draft  of  the  Act  which  is  before  me  at  the 
time  this  summary  is  being  prepared  for  the  com- 
positor, makes  no  specification  concerning  the  status 
of  books  for  which  no  Canadian  editions  may  have 
been  arranged,  either  under  the  author's  instructions, 
or  (in  the  absence  of  such  instructions)  under  a 
license  from  the  Minister  of  Agriculture.  It  is  evi- 
dent that,  in  the  ordinary  course  of  trade,  but  a  small 
percentage  of  the  current  publications  of  each  year 
can  be  available  for  Canadian  editions,  as  it  is  only 
the  exceptional  work  that  can  be  made  to  pay  in  an 
edition  printed  for  so  small  a  reading  public  as  that 
of  Canada.  In  the  absence  of  any  specific  provision 
for  such  books,  I  can  only  assume  that  their  status 
will  be  as  at  present ;  and  this  understanding  is  con- 
firmed by  Mr.  Caine's  analysis  which  follows. 

If,  therefore,  no  Canadian  edition  may  have  been 
printed  under  the  provisions  of  this  Act,  a  work 
which  has  been  copyrighted  in  Great  Britain,  or 
which  has  secured  British  copyright  under  the  Berne 
Convention,  under  the  American  act,  or  under  any 
other  interstate  convention,  will  be  entitled  to  copy- 
right protection  within  the  Dominion.  For  such 
books,  the  right  to  secure  a  license  for  a  Canadian 
edition  will,  however,  continue.  After  the  publica- 
tion of  such  licensed  edition,  however  long  such 
publication  may  be  deferred,  the  importation  of  the 


THE   STATUS   OF   CANADA.  473 

English  or  American  edition  must,  under  the  pro- 
visions of  the  present  act,  be  prohibited.  I  judge, 
however,  that  it  will  in  practice  prove  very  difficult 
to  enforce  such  prohibition  in  the  case  of  books  the 
importation  of  which  has  continued  during  any  suc- 
cessive seasons. 

It  is  probable  that  the  full  bearing  of  the  Act  will 
not  be  understood  until  the  courts  have  had  oppor- 
tunities of  passing  upon  its  provisions. 

In  January,  1896,  a  memorial  was  formulated  by 
representatives  of  various  associations  in  France  in- 
terested in  literary  and  artistic  copyright,  protesting 
against  the  approval  by  the  British  Government  of 
any  Canadian  act  which  made  Canadian  manufacture 
a  condition  of  copyright.  It  was  the  conclusion  of 
these  remonstrants  that  if  such  a  law  should  go  into 
force,  it  would  be  necessary  to  exclude  Canada  from 
the  Berne  Convention.  This  French  contention 
seems  to  me  to  be  well  founded.  I  judge,  however, 
that  Canada  will  probably  elect  to  be  excluded  from 
the  provisions  of  the  Berne  Convention  rather  than 
to  give  up  the  right  of  making  printing  in  Canada  a 
condition  of  Canadian  copyright. 

Mr.  Caine  gives  the  following  analysis  of  the  pro- 
visions and  of  the  probable  working  of  the  pro- 
posed Act  : 

1.  Such  an  Act  would  be  limited  in  its  operation 
to  the  works  of  the  popular  authors.  This  would 
meet  one  of  the  objections  of  Mr.  Goldwin  Smith  to 
the  clause  requiring  that  a  book  should  be  printed 
in  the  Dominion. 

2.  If  a  book  would  not  pay  to  print  and  publish 


474  THE   QUESTION   OF   COPYRIGHT. 

in  Canada,  it  would  not  therefore  fail  of  copyright 
there.  The  original  edition  could  go  into  the  Do- 
minion, as  at  present,  during  the  whole  term  of  its 
copyright  in  the  country  of  its  origin.  This  would 
meet  the  case  described  in  the  valuable  letter  of  Mr. 
Herbert  Spencer. 

3.  Though  a  new  writer  might  lose  his  copyright 
in  America  by  failing  to  comply  with  the  American 
Copyright  Act,  he  would  not  on  that  ground  lose  his 
copyright  in  Canada,  where  he  would  hold  it  abso- 
lutely until  the  end  of  his  term. 

4.  Such  an  Act  would  not  exclude  from  Canada  the 
English  book  which  had  been  copyrighted  in  the 
United  States  but  never  registered  or  licensed  in  the 
Dominion,  but  it  would  exclude  the  American  re- 
print of  a  book  which  had  been  registered  or  licensed, 
and  it  would  also  exclude  the  English  colonial  re- 
print, which  was  meant  to  meet  a  condition  that  is 
gone — the  condition  of  general  piracy  in  the  United 
States — and  would  then  be  useless  and  mischievous ; 
and  it  would  also  exclude  the  English  edition  after 
the  publication  of  the  Canadian  edition. 

5.  Our  understanding  with  the  United  States 
would  not  be  endangered,  because  American  authors 
would  enjoy  the  same  privileges  and  be  under  the 
same  obligations  as  English  authors. 

6.  Such  an  Act  would  not  imperil  the  great  ad- 
vantages to  English  authors  of  American  copyright, 
because  it  would  put  it  within  the  author's  control 
(both  under  the  condition  of  registration  and  under 
the  condition  of  license)  to  see  that  his  American 
market  could  not  be  injured  in  Canada. 


THE   STATUS   OF   CANADA.  475 

7.  Such  an  Act  should  not  be  inconsistent  with 
the  spirit  of  the  Berne  Convention.  As  the  excel- 
lent report  of  the  departmental  representatives 
(1892)  very  properly  says  :  "  The  Convention  merely 
stipulates  that  foreign  copyright  owners  are  to  be 
entitled  to  the  same  rights  and  privileges  as  British 
copyright  owners,  and  if  the  rights  of  British  copy- 
right owners  are  cut  down  by  such  licenses,  foreign 
copyright  owners  are  not  entitled  to  complain  of 
their  rights  being  cut  down  to  a  similar  extent. 

8.  Such  an  Act  ought  to  enable  the  Dominion 
Government  to  withdraw  its  application  to  denounce 
the  Berne  Convention,  and  so  to  remove  the  danger 
under  which  Canadian  authors  now  stand  of  being 
put  into  a  position  of  isolation. 

9.  The  interposition  of  a  Government  department 
(the  Department  of  Agriculture)  in  the  publishing 
industry  of  Canada — now  perplexed  by  the  uncer- 
tainties of  the  Foreign  Reprints  Act,  and  threatened 
with  the  intricacies  of  the  proposed  legislation  of 
1889 — would  be  confined  to  a  single  and  simple 
transaction,  which  would  probably  be  the  less  fre- 
quent form  of  arrangement. 

G.  H.  P. 


INDEX. 


Abridgments  and  abstracts,  Copy- 
right in,  229,  373 

Act  of  Congress  of  March  3 ,  1 8g  1 , 
12-13 

Acts,  Earliest,  in  relation  to  Copy- 
right, 28 

Adams,  G.  E.,  55,  56 

Adams,  Judge,  186 

Aliens,  Right  of,  to  Copyright  in 
the  British  Dominions,  192 

Allen,  Henry  G.,  178 

Ames,  Prof.  J.  B.,  on  disseizin 
of  chattels,  330 

American  authors  and  European 
readers,  ib^ff. 

American  books  pirated  in  Eng- 
land, 383/:  / 

AmericanCopyright  League, The, 
organization  of,  44;  proceedings 

of,  47 
American  literature  in  relation  to 

International  Copyright,  97^. 
Anne,  Statute  of,  analysis  of  the, 

322/:,  412/: 
Appleton,  D.,  &  Co.,  42 
Appleton,  W.  H.,  43,  47,  73 
Architectural  designs,  Copyright 

in,  242 
Argentine    Republic,    Copyright 

Laws  of,  454 
Arnell,  S.  M.,  42 
Arnold,  Matthew,  on  Copyright, 

324.  325 
Arnoux,  Ritch  &  Woodford,  51 
Art  Copyright,  modified  by  the 

Covert  Amendment,  21 
Art  designs,  Definition  of,  11 
Art  productions,   Copyright   in, 

145,  169,  171,  234,  236 


Arthur,  President,  recommends 
an  International  Copyright,  46 

Artists  of  Europe,  Relations  of, 
with  the  United  States,  171 

Ascent  of  Alan,  The,  case  con- 
cerning the  Copyright  of,  181 

Austria,  Present  Copyright  stat- 
ute of,  364,  454 

Authors,  British  Society  of,  470 

Authors'  Copyright  League,  21 

Authors  of  Europe,  Copyright  in- 
terests of,  172  ;  criticism  of, 
concerning  the  Act  of  1891,  vi. 

Authors,  Injury  to,  under  the 
American    Copyright   Statute, 

341/*. 
Authors,  Natural  rights  of,  83 
Authors,   Petition  of,  for  Inter- 
national Copyright,  107 
Authors'  readings  in  behalf  of  the 
Copyright  League,  50 

B 

Baird,  Henry  Carey,  388^".  ,•  451 
Baldwin,  J.  D.,  43,  385 
Bankhead  Bill,  the,  x. 
Banning,  Henry  B.,  44 
Beckett  vs.  Donaldson,  88 
Beckford  vs.  Hood,  415 
Belgium,  Copyright  Law  of,  365, 

455 
Berne  Convention,  The  report  of, 
288^,475  ;  contracting  States 
under,  289,  316 ;  authors' 
rights  under,  289  ;  definition 
of  literary  and  art  works  under, 
289  ;  translations  under,  peri- 
odical material  under,  dra- 
matic compositions  under,  290 ; 
anonymous  and  pseudonymous 
works  under,  291 


477 


478 


INDEX. 


Bernheim,  A.  C,  History  of  the 
Lata  of  Aliens,  by,  347 

Black,  A.  &  C,  172,  177,  178 

Black  vs.  Allen,  178 

Black  vs.  Enrich,  1 80 

Black  vs.  Funk,  179 

Black  etal.  vs.  Stoddart,  177  ff. 

Bolivia,  Copyright  Law  of,  455 

Bologna,  early  booksellers  of,  358 

Book,  Definition  of,  under  United 
States  Statute,  12,  184,  190 

Books,  Prices  of,  ior,  167^". 

Books,  Registration  of,  199 

Boston  Copyright  Association, 
The,  449 

Bowker,  R.  R.,  51  ;  summary  of 
Copyright  legislation,  28  ff.  J 
History  of  Copyright  in  the 
United  Slates,  by,  335,  336  ; 
on  the  nature  and  origin  of 
Copyright,  317  ff.  ;  on  statu- 
tory Copyright  in  England, 
412/: 

Brazil,  Copyright  Law  of,  455 

Breckinridge,  W.  C.  P.,  53 

Bristed,  C.  A.,  386 

Britannica  cases,  The,  177  ff. 

British  authors  protest  against  the 
Canadian  Act,  469 

British  Commission  of  1878,  214 

British  Copyright  Act  of  1886, 
302/". 

British  Copyright  Law,  The  pro- 
visions of  the,  vii. 

British  Order  in  Council,  31 1  ff. 

British  Society  of  Authors,  Copy- 
right Bill  framed  by  the,  275^". 

British  Weekly,  The,  181 

Bryant,  W.  C,  41,  42,  43,  384 

Bureau  of  Copyrights,  The,  pro- 
vided for  in  the  Treloar  Bill,  24 

Butler,  Judge,  178 

Butterworth,  Representative,  55 


Caine,  Hall,  470  ff.  j  analysis  by, 
of  the  provisions  of  the  Cana- 
dian Act  of  1895,  472  ff. 


Caine,  Hall,  and  Daldy,  F.  R., 
Compromise  Act  for  Canada, 
proposed  by,  470  ff. 

Canada,  the  Copyright  status  of, 

467  ff. 

Canadian  Act  of  1889, 455,  468^". 

Canadian  Act  of  1895,  Qjoff. 

Canadian  Copyright,  262  ff. 

Carey,  Henry  C,  Definition  of 
literary  property  by,  354  ;  Let- 
ters on  Copyright,  354,  383 

Carte  vs.  Duff,  184/". 

Carte  vs.  Evans,  185 

Celtes,  Conrad,  363 

Chace,  Jonathan,  46,  52,  53,  55 

Chace  Copyright  Bill,  the,  46  ff. 

Charles  IX.  of  France,  372 

Cheap  books  and  good  books, 
418/-. 

Chicago  Copyright  League,  120 

Chili,  Copyright  Law  of,  456 

China,  Copyright  in,  367,  456 

Chopelin, report  on  literary  prop- 
erty by,  352 

Clarendon  Treaty,  The,  43 

Clay,  Henry,  Report  of,  in  favour 
of  International  Copyright, 
33  ff-,  4°  ;  Copyright  in  its 
relations  to  protection,  382 

Cleveland,  Grover,  106  ;  recom- 
mends an  International  Copy- 
right, 46 

Colleges,  Petitions  of,  112  ff. 

Collins,  Patrick  A.,  44 

Colombia,  Copyright  Law  of,  450 

Colonial  Copyright,  2<$§ff.,  468 

Colt,  Judge,  176,  184 

Common  law  right  in  the  United 
States,  93 

Continental  authors,  Criticisms 
of,  concerning  the  Act  of  1891, 
vi. 

Convention  of  Berne,  States 
which  have  become  parties  to 
the,  316 

Cooley,  Justice,  on  the  law  of 
blasphemy,  373 

Copinger,  on  remedies  for  in- 
fringement, 321  ;  Definition  of 
Copyright  by,  352 


INDEX. 


479 


Copyright,  The  evolution  of,  324 
Copyright,  The  Law  of,  in  the 

United  States,  iff. 
Copyright,  The  nature  and  origin 

of,  31 7  ff- 

Copyright,  Notice  of,  how  far 
requisite  for  Copyright  protec- 
tion, 182/'. 

Copyright,  Term  of,  vii.,  2,  3,  79, 
173,  338  ;  proposed  extension 
of,  under  the  Treloar  Bill,  24 

Copyright,  Terms  of,  in  Euro- 
pean States,  173 

Copyright  Act,  British,  of  1838, 

41 
Copyright  Act  of  1891,  Analysis 

of  the  provisions  of,  138  ff. 
Copyright  Act  in  Great  Britain, 

of  1880,  302 
Copyright   Act    of    the    United 

States,  Modifications  proposed 

in  the,  vii.,  viii. 
Copyright  Acts,  Earliest,  in  the 

United  States,  28 
Copyright  Acts  of  Great  Britain, 

309/"-  ,        ,    , 

Copyright  Bill  introduced  by 
Henry  Clay,  38  ff. 

Copyright  Bill  of  the  British 
Society  of  Authors,  ^H  ff. 

Copyright  Commission,  Appoint- 
ment of,  recommended,  xi.  ff. 

Copyright  at  Common  Law,  87  ; 
in  Great  Britain,  30 

Copyright  in  the  Constitution,  90 

Copyright  entries  in  the  United 
States,  Fees  for,  6,  7  ;  regula- 
tions for  the  notice  of,  8 

Copyright  entries  in  the  United 
States,  for  works  of  foreign 
authors,  18 

Copyright  fees  in  the  United 
States,  average  annual  amount 
of,  x. 

Copyright  in  Great  Britain,  Term 
of,  191 

Copyright  infringements,  Penal- 
ties for,  8  ff. 

Copyright  Law  of  1S91,  Results 
of  the,  148  jf.,  iteff. 


Copyright  Laws   of   the   world, 

Summary  of,  454^". 
Copyright   Leagues   oppose    the 

Treloar  Bill,  24 
Copyright    and     "  Monopolies," 

153 

Copyright,     "Monopolies"    and 

"  Protection  "  449  ff. 
Copyright  in  the  United  States, 

Persons  entitled  to,  2 
Copyright  in  the  United  States, 

Conditions  of,  2>ff- 
Copyright  in  works  of  art,  xi. 
Copyright  registry  in  the  United 

States,  vi. 
Copyright  Statutes  of  the  United 

States,  29^". 
Copyright  treaties  between   the 

States  of  Europe,  377  ff. 
Copyrights,  Assignment  of,  3. 
Copyrights,  directions  for  secur- 
ing, under  the  U.   S.  Statutes, 

J3#- 
Copyrighted  articles,  Regulation 

for  the  deposit  of,  7,  8 
Costa  Rica,  Copyright  in,  456 
Covert  Amendment,  The,  v.,  21 
Cox,  S.  S.,  43 
Crampton,  John  F.,  3S3 
Crown  Copyright,  194 
Cummings  Amendment,  The,  22 
Cummings,  Amos,  22 
Curtis,  G.  T.,  on  Copyright,  123 
Curtis,  George  William,  42  ;    on 

cheap  books,  418 


D 


Daldy,  F.  R.,  470 

Dallas,  Judge,  181 

Daniels,  Senator,  61,  62 

Darras,  Alcide,  334 

Denmark,    Copyright    Law    of, 

304,  456 
De  Yinne,  T.  L.,  53 
Disseizin  of  chattels,  330 
Documents,    Private    Copyright 

in,  190 
Dodd,  Mead  and  Co.,  186 
Donaldson  vs.  Beckett,  31,  413 


480 


INDEX. 


Dorsheimer,  William,  45 
Dramas,  Copyright  in,  195,  196 
Dramatic    compositions,    Copy- 
right in,  230 
Dramatic    performances,    Copy- 
right in,  195 
Dramatic  productions  under  the 
Cummings  Amendment,  22_^T. 
Dramatization  of  novels,  196 
Drone,  E.  S.,  94,  334  ;  definition 
of  literary  property   by,    351, 
353  ;  on  Wheaton  vs.   Peters, 
372  ;  on  the  law  of  blasphemy, 

374 
Drummond  vs.  Altemus  and  Co., 
l8iff. 

E 

Ecuador,  Copyright  Law  of,  457 
Edmunds,  Senator,  62 
Educators,  Petitions  from,  11^  ff. 
Eggleston,   Edward,  44,  47,  48, 

49.  52 

Egypt,  Copyright  in,  457 

Enrich  Bros.,  180 

Elder,  S.  J.,  49 

Electric  Club,  of  New  York, 
Resolution  of,  120 

Eliot,  C.  W.,  48 

England,  Copyright  Law  of,  see 
Great  Britain, 

English,  William  H.,  45 

English  authors,  Relations  of, 
with  the  United  States,  153  ff. 

Engravings,  Copyright  in,  198 

Estes,  Dana,  48,  49,  6o,  97 

European  authors,  Copyright  in- 
terests of,  172 

Evarts,  Wm.  M.,  44,  152 

Everett,  Edward,  42,  383 


Farrer,  Sir  Thomas,  67,  266 

Febiger,  C,  52 

Fiction,  Status  of,  in  the  United 
States,  151  ff.  ;  competition 
of  the  cheaper  magazines  with, 

165 
Fine  Arts,  Copyright  in  the,  234, 

235 


Finland,  Copyright  law  of,  457 

Fishel,  Adler,  and  Schwartz  vs. 
Lueckel  and  Co.,  175 

Fitch,  Ashbel  P.,  56 

Foreign  literature  and  American 
morals,  42S  ff. 

Foreign  Reprints  Act,  468 

Foreign  States  in  Copyright  rela- 
tions with  the  United  States, 
19,  20 

Forfeiture  of  copies,  251 

France,  Copyright  Law  of,  457  ; 
legislation  in,  336  ;  criticisms 
of  the  authors  of,  in  regard 
to  the  Act  of  1891,  vi.  ;  pen- 
alties in,  for  infringement  of 
Copyright,  361 

Francis,  C.  S.,  42 

Francis  II.  of  France,  364 

French  authors,  Protests  of, 
against   the   Canadian  Act  of 

1891,  473 
French  books,  The  prices  of,  435 

French  Revolution,  The,  and  in- 
tellectual property,  337 
Frye,  Senator,  59,  61,  62 
Frye  Amendment,  The,  59,  60 
Funk,  Isaac  K.,  179 


Gaius,   on  intellectual  property, 

357 
German    books,  The    prices   of, 

43  ff- 

German  States,  Privileges  issued 
in  the,  363  ff 

Germany,  First  Copyright  enact- 
ment in,  363  ;  Copyright  Law 
of, 364,  458  ;  movement  in,  to 
set  aside  the  convention  with 
the  United  States,  vi. 

Gibbons,  Cardinal,  on  Copyright, 
121 

Gilbert  and  Sullivan,  184 

Gilder,  R.  W.,  44 

Gladstone,  W.  E.,  on  Inter- 
national Copyright,  124 

Granville,  Lord,  44 


INDEX. 


481 


Gray,  Senator,  62,  155 

Great    Britain,  Abstract    of   the 

Copyright  Law  of,  188  ff. 
Great  Britain,  Copyright  Law  of, 

367,  459 
Greece,  Copyright  Law  of,  364, 

459 
Green,  G.  W.,  47 
Guatemala,    Copyright  Law   of, 

459  ,     ,  . 

Gutenberg,  The  work  of,  in  rela- 
tion to  Copyright,  329 

H 

Haggard,  Rider,  182 

Haggard  vs.  The  Waverly  Pub- 
lishing Co.,  182 

Harper  Bros.,  44,  386  ;  support 
International  Copyright,  391 

Harper  vs.  Ranous,  183  _$\ 

Harrison,  Benjamin,  106 

Harrison,  Frederic,  on  the  Choice 
of  Books,  421 

Hawaii,  Copyright  Law  of,  459 

Hawley,  Joseph  R.,  45 

Hawley  Bill,  The,  65 

Hayti,  Copyright  Law  of,  559 

Hemy  II.  of  France,  362 

Henry  III.  of  France,  362 

Hicks  Bill,  The,  v.,  20 

Hiscox,  Senator,  62,  155 

Holland,  Copyright  Law  of,  364, 
460 

Holt,  Henry,  96,  99 

Honduras,  Copyright  in,  460 

Hood,  Thomas,  on  cheap  bread 
and  cheap  books,  387 

Houghton,  H.  O.,  48,  5* 

House  of  Lords,  Opinion  of,  on 
the  Statute  of  Anne,  89 

Hroswista,  Helena,  363 

Hubbard,  Gardiner,  51 

Hungary,  Copyright  Law  of,  460 

Huxley,  Thomas,  70 


Immoral  publications  under  the 
British  Statute,  183 


Importation  of  pirated  works, 
212 

International  Copyright  agree- 
ments, 81 

International  Copyright  Acts  of 
Great  Britain,  308,  309 

International  Copyright  under 
the  British  Statute,  coS  ff. 

International  Copyright,  con- 
sidered by  the  British  Com- 
mission of  1878,  2bqff. 

International  Copyright,  Cases 
and  decisions  under,  in  the 
United  States,  175  ff. 

International  Copyright,  Efforts 
in  the  United  States  in  behalf 
of,  &iff. 

International  Copyright  and  the 
prices  of  books,  441^". 

International  Copyright,  Provi- 
sions for,  in  the  United  States, 
Act  of  1891,  13 

International  Copyright  in  the 
United  States,  Record  of  the 
contest  for,  40  ff. 

International  Copyright,  Recom- 
mendations in  regard  to,  227 

International  Copyright  relations 
of  the  United  States,  19 

International   Copyright  Union, 

287  ff. 

International  Union  for  the  pro- 
tection of  literary  and  art 
works,  292 

International  literary  under- 
takings, 444  ff. 

Italy,  Copyright  Law  of,  365, 
460 

Irving's    Works,   Copyright    in, 

374 
Ivison,  Henry,  42,  384 


Japan,   Copyright  Law  of,  364, 

460 
Jay,  John,  41 
Jheri'ng,  definition  of  legal  rights, 

327  ;  the  struggle  for  law  by, 

333 


482 


INDEX. 


Johnson,  R.  U.,  47,  48,  50,  63 
Johnston,  Alexander,  178 
Justinian,    on   intellectual  prop- 
erty, 357 
Juvenal,  on  the  sale  of   dramas, 
356 

K 

Kennedy,  James,  52 
Keratry,  Comte  de,  54 
Klostermann,    on   literary  prop- 
erty, 355 
Kohler,  Ignatius,  51 


Landor,  Walter  Savage,  on  Copy- 
right, 333 

Lathrop,  G.  P.,  44 

Lawrence  vs.  Dana,  373 

Lea,  Henry  C,  53 

Lectures,  Copyright  in,  181,  197, 
232,  233 

Leo  X.,  Relations  of,  to  literary 
property,  360 

Leopold  II.,  364 

Letters,  Copyright  in,  190 

Lewes,  G.  H.,  Life  of  Goethe, 
by,  348 

Librarian  of  Congress  in  charge 
of  Copyrights  under  the  Stat- 
utes, i.,  ix.ff.,  31  ff. 

Librarians,  Petitions  from,  n$ff. 

"  Libraries"  of  fiction,  154^". 

Libraries,  Right  of,  to  copies  of 
copyrighted  articles,  under  the 
British  statute,  202,  252 

Lieber,  Francis,  Definition  of 
property,  by,  353,  382 

Literature,  Works  of,  under  the 
Act  of  1891,  138 

Literary  property,  Definitions  of, 

351/: 
Literary     Property,      Historical 

Sketch  of,  351  ff 
Literary  property.  Objections  to 

its  perpetuity,  399  ff. 
Little,  Brown,  &  Co.,  177 
Littleton  vs.  Ditson,  184 


Lodge,  Henry  C,  57,  63 

Longmans,  Green  &  Co.  vs. 
The  Waverly  Publishing  Co., 
182 

Louis  XII,  Relations  of,  to  liter- 
ary property,  360 

Lounsbury,  Professor,  on  the 
prices  of  books,  433 

LoweH,  J.  R.,  44,  45.  324,  393 

Luther's  translation  of  the  Bible, 
363 

Luxembourg,  Copyright  Law  of, 

455 
Lyon-Caen   and    Delalain,     La 
Propriety  Litl/raire  et  Artis- 
tique,  336 

M 

Macaulay,  T.  B.,  415 
Mackay-Smith,  A.,  50 
MacLaren,  Ian,  186 
MacLeod,  on  the  principles  of 

Copyright,  88 
Magazines  of  the  United  States 

on     International    Copyright, 

124  ff. 
Magazines,  Competition  of,  with 

fiction  in  volume  form,  165 
Maine,  Sir  Henry,  97 
Mansfield,  Lord,  on  Copyright, 

90,  413/"- 
Manufacture,  American,   burden 

of  proof  concerning,  186 
Manufacturing  conditions  in  the 

American  Act,  160 
Manufacturing    conditions    and 

Copyright,  402 
Manufacturing  designs  to  be  en- 
tered in  the  Patent  Office,  12 
Martial,   on   the    prices    of    his 

books,  355 
Mason  Bros.,  42 
Matthews,    Brander,    on    cheap 

books  and  good  books,  418  ff.; 

on  the  evolution  of  Copyright, 

324  if- 
Matthews,  Cornelius,  41 
Maximilian,  Emperor,  363 
McClurg,  A.  C,  47,   49 


INDEX. 


433 


Mexico,  Copyright  Law  of,  461 

Mikado,  The,  Copyright  in  the 
opera  of,  184 

Millar  vs.  Taylor,  88,  413  ff. 

Milton,  John,  on  good  books, 
440 

Mitchell,  Donald  G.,  173 

Mitchell,  S.  W.,  on  Copyright, 
122 

Monaco,  Copyright  Law  of,  461 

Monkswell  Bill,  the,  173,  275  jf./ 
analysis  of,  by  Sir  Frederick 
Pollock,  282/: 

Montenegro,  Copyright  Law  of, 
461 

Montevideo,  Copyright  Conven- 
tion of,  314-315 

Morrill  Bill,  the,  x. 

Morrill,  Lot  M.,  44,  3S7 

Morris,  Edward  P.,  42 

Morton,  J.  P.,  386,  387 

Moulins,  Ordinances  de,  334, 
362 

Music  composers,  Opinions  of, 
in 

Musical  compositions,  under  the 
Act  of  1891,  146  ;  Copyright 
in,  184,  197,  230  ;  and  the 
manufacturing  requirement, 
l84iT. 

N 

Nada  the  Lily,  suit  concerning, 
182 

National  Assembly  of  France, 
The,  362 

Naujok,  G.,  Die  Heilige  Cecilia, 
painted  by,  l7Sff- 

Nelson,  Judge,  176 

New  England  International 
Copyright  Association,  Resolu- 
tion of,  120  ff. 

Newspaper  Publishers'  Associa- 
tion, 21 

Newspaper  publishers,  Resolu- 
tion of,  118 

Newspapers,  Copyright  in,  233, 

234 
Newspapers  supporting  the  Copy- 
right Bill,  57 


Newspapers  of  the  United  States 
on    International     Copyright, 

125/". 
Norway,  Copyright  Law  of,  461 
Novello  vs.  Ditson,  184 
Novels,  dramatization  of,  231 


0 


Osgood  vs.  Aloe,  186 


Paintings,    Copyright    in,     197, 

236  ff. 
Palmerston,  Lord,  382  ;  suggests 

a  Copyright  convention,  41 
Palsgrave,  John,  332 
Paraguay,  Copyright  in,  461 
Paris,  Early  booksellers  of ,  358 
Parkes,    Baron,    on    Copyright, 

320 
Parton,  James,  42 
Pasco,  Senator,  63 
Patent    Office     of     the    United 

States,   12 
Patents,    House  Committee   on, 

25  •    • 

Patents,  U.  S.  Commissioner  of, 

12 

Payson,  Lewis  E.,  56 

Peale,  R.  S.,  &  Co.,  180 

Pearsall-Smith,  R.,  66 

Pearsall-Smith  scheme  of  Copy- 
right, The,  65 

Penalties  for  infringement  of 
Copyright,  201,  202,    204  ff., 

254 
Peter  of  Ravenna,  359  ;  secures 

Copyright  for  Phoenix,  332 
Peru,  Copyright  Law  of,  461 
Photographs,  Copyright  in,  197, 

240 
Photographische    Gesellschaft    of 

Berlin,  The,  175  ff. 
Piatt,  O.  II.,  55.  6i,  62,  148/". 
Platt-Simonds     Copyright     Act, 

text  of,  131  ff. 
Pollock,  Sir  Frederick,  282 
Portugal,  Copyright  Law  of,  461 


484 


INDEX. 


Pott,  James,  &  Son,  181 

President,  The  discretionary 
power  of  the,  under  the  Act  of 
1891,  13,  182  ff. 

Prices  of  books  as  affected  by 
International  Copyright,  154, 
167  ff. 

Prime,  S.  Irenaeus,  42 

Prints  or  labels  for  manufacturing 
purposes  distinguished  from 
works  of  art,  11  ff. 

Printing  in  relation  to  Copy- 
right, 329 

Privileges,  the  earliest  form  of 
Copyright,  331 

Proculus,  on  intellectual  prop- 
erty, 357 

Property,  Earlier  ideas  concern- 
ing, 395  ff- 

Protectionists  and  International 
Copyright,  402. 

Proudhon's  definition  of  prop- 
erty, 354 

Prussia,  Convention  of,  with 
Wurtemberg,  41 

Publication,  What  constitutes, 
184 

Publishers,  American,  first  or- 
ganization of,  in  behalf  of 
International  Copyright,  42 

Publishers  and  the  Copyright 
Bill,  154 

Publishers'  Copyright  League, 
21,  nbff. 

Putnam,  G.  H.,  47,  48,  51,  52, 
60  ;  historical  sketch  of  literary 
property  by,  351  ;  on  Copy- 
right monopolies  and  protec- 
tion, 449^"./  on  International 
Copyright  and  the  prices  of 
books,  441^. 

Putnam,  George  P.,  41,  42,  43, 
45,  382,  387 

Putnam,  Judge,  175 

Putnam  vs.  Meyer,  373 

Putnam    vs.    Pollard,     31,    372, 

374 

Piitter,  Beitrdge,  359 

Pynson,  Richard,  secures  the  ear- 
liest English  privilege,  332 


R 


Reciprocity,  Conditions  of,  under 

the  Act  of  1891,  146 
Reed,  Thomas  B.,  63 
Registration  of  books  and  other 

articles,  200 
Registration  of  Copyrights,  242 

Results  of  the  Copyright  Law, 

162/: 
Royalty  system  of  Copyright,  217 

ff;  403  if. 
Robinson  Copyright  Bill,    The, 

44 
Rome,  Copyright  in,  328 
Rome,  Literary  property  in,  356 
Roman     jurists    on     immaterial 

property,  357 
Routledge  vs.  Low,  468 
Russia,  Copyright  Law  of,  364, 

462 

S 

St.  Leonards,  Lord,  on  Copy- 
right, 317 

Salvador,  Copyright  in,  463 

Scribner,  Charles,  42 

Scribner,  Charles  (the  second), 
47,  63 

Scribners'  Sons,  Charles,  178  ff. 

Scrutton,  T.  E.,  332 

Sculpture,  Copyright  in,  197, 
235-236 

Serials  and  periodical  articles, 
Copyright  in,  223 

Servia,  Copyright  Law  of,  463 

Sherman,  John,  58,  61,  62 

Shipman,  Judge,  179 

Simonds,  W.  E.,  55  ;  report  of, 
on  International  Copyright,  77 

f' 

Simultaneous  publication,  con- 
dition of,  under  the  British 
Statute,  193 

Smith,  Goldwin,  467 

Solberg,  Thorwald,  46 

Sosii,  the,  Roman  publishers,  355 

South  African  Republic,  Copy- 
right Law  of,  463 


INDEX. 


485 


South   American    States,   Copy- 
right Convention  of,  314,  315 
Spain,    Copyright  Law  of,  364, 

463 
Spencer,  Herbert,  67,  405,  469 
Spira,  John  of,  secures  the  first 

European  Copyright,  331 
Spofford,  A.  R.,  155,  169 
Stage-right  under  the  Cummings 

Amendment,  22 
Star  Chamber,  The,  335 
Stationers'  Company,  The,  334 
Statute,  Copyright,  of  1790,  28 
Statute  of  Anne,  87 
Statutes  of  the  United  States  in 

re  Copyright,  1  ff. 
Statutory  Copyright  in  England 

and  development  of,  412  ff. 
Stedman,  E.  C,  42,  384 
Stephen,  Sir  James,    digest     of 

the  Copyright   Law  of    Great 

Britain,  by,  189 
Stoddart,  J.  M.,  &  Co.,  177 
Subjects  of  Copyright,  372 
Sumner,  Charles,  42 
Supreme  Court  of  the    United 

States  on  Copyright,  93 
Sweden,  Copyright  Law  of,  364, 

464 
Swiss   Confederation,   placed  in 

charge    of    the    International 

Union,  292 
Switzerland,  Copyright  Law  of, 

464 
Sylvester,  Professor,  on  the  buy- 
ing of  books,  432 


T 


Talfourd,  Sergeant,  41 
Terence,    secures    sale    for    his 

dramas,  356 
Term  of  Copyright   considered, 

338# 
Term    of    Copyright    in    Great 

Britain,  191 
Term  of  Copyright  recommended 

by    the    British    Commission, 

219 
Thomson's  Seasons,  413 


Thornton,  Sir  Edward,  43,  394 
Title,  Copyright  in  a,  183,  185^. 
Townsend,  Judge,  ll^ff. 
Tracy,  George,  185 
Trade  Marks,  Regulations  for  the 

protection  of,  12 
Trade-mark  as  a  protection  for 

uncopyrighted  material,  186 
Translations,   Copyright  in,  211 

ff> 

Treloar  Bill,  the,  24  ff. 

Trilby,  Copyright  in  the  title  of, 

i83jf. 
Tryphon,  publisher  for  Martial, 

355 
Tucker,  Randolph,  46 
Tunis,  Copyright  Law  of,  464 
Turkey,  Copyright  in,  464 
Twain,   Mark,  on  cheap  books, 

428 
Typographical  unions,  influence 

of,   in   shaping  the  Copyright 

Bill,  51,  52,  53,  n8 
Typothetse,  National  Association 

of,  52,  53.  119 


U 


United  States,  Earliest  Copyright 
Acts  of  the,  369 

United  States,  Copyright  Law 
of,  1,  464 

United  States,  History  of  Copy- 
right in  the,  335 

United  States,  the  Copyright 
Law  of,  Modifications  recom- 
mended in,  viii. 

University  Copyright,  194,  224, 
225 

University  of  Paris,  Statutes  of 
the,  358 

Uruguay,  Copyright  in,  464 


Van  Dyke,  Henry,  50 
Venezuela,    Copyright    Law   of, 

465 
Venice,  Relations  of,  to  literary 
property,  360 


486 


INDEX. 


Venice,  The  Republic  of,  grants 

the  first  Copyiight,  331 
Vote  on  the  Copyright  Bill  in  the 

House,  December,  1S90,  156  ; 

in  the  Senate,  March  3,  1891, 

160 

W 

Wachter,  Das  J'crlcgsrechts,  of, 

353 
Walker,  Francis  A.,  178 
Watson,  John,  186 


Webb,  Judge,  176 

Webster,  Noah,  initiates  the 
State  Copyright  laws,  36c) 

Werckmeister  vs.  Pierce  &  Eush- 
nell,  xi.,  175 

Wheaton  vs.  Peters,  30,  93,  371, 
372 

White,  Richard  Grant,  Interna- 
tional Copyright  and  Free 
Trade,  401 

Wilson,  W.  L,,56 

Worde,  Wynkyn  de,  332 


Books  and  Their  Makers 
During  the  Middle  Ages 

A  Study  of  the  Conditions  of  the  Production  and  Distribu- 
tion of  Literature  from  the  Fall  of  the  Roman  Empire  to 
the  Close  of  the  Seventeenth  Century. 

By  GEO.  HAVEN  PUTNAM,  A.M. 

Author  of  "  Authors  and  Their  Public  in  Ancient  Times,"  "  The 
Question  of  Copyright,"  etc.,  etc. 


In  two  volumes,  8°,  cloth  extra  (sold  separately),  each        -        $2.50 

Volume  I.     476-1500.    (Ready  April,  1896.) 
PART   I. — BOOKS  IN  MANUSCRIPT. 
I.— The  Making  of  Books  in  the  Monasteries. 
Introductory. — Cassiodorus  and  S.  Benedict. — The  Earlier  Monkish  Scribes. — 
The  Ecclesiastical  Schools  and  the  Clerics  as  Scribes. — Terms  Used  for  Scribe 
Work. — S.   Columba,   the   Apostle    to    Caledonia. — Nuns  as   Scribes. — Monkish 
Chroniclers. — The  Work  of  the  Scriptorium. — The  Influence  of  the  Scriptorium. — 
The  Literary  Monks  of  England. — The  Earlier  Monastery  Schools. — The  Bene- 
dictines of  the  Continent.— The  Libraries  of  the  Monasteries  and  their  Arrange- 
ments for  the  Exchange  of  Books. 

II.  — Some  Libraries  of  the  Manuscript  Period. 
III. — The  Making  of  Books  in  the  Early  Universities. 
IV. — The  Book-Trade  in  the  Manuscript  Period. 
Italy. — Books    in    Spain. — The    Manuscript    Trade    in    France. — Manuscript 
Dealers  in  Germany. 

PART   II. — THE   EARLIER   PRINTED   BOOKS. 
I. — The  Renaissance  as  the  Forerunner  of  the  Printing-Press. 
II. — The  Invention  of  Printing  and  the  Work  of  the  First  Printers 
of  Holland  and  Germany. 
III.— The  Printer-Publishers  of  Italy. 

Volume  II.     1500-1709.     (Ready  September,  1896.) 
IV.— The  Printer-Publishers  of  France. 
V.— The  Later  Estiennes  and  Casaubon. 

VI. — Caxton  arid  the  Introduction  of  Printing  into  England. 
VII. — The  Kobergers  of  Nuremberg. 
VIII.— Froben  of  Basel. 

IX. — Erasmus  and  his  Books. 

X. — Luther  as  an  Author. 
XI. — Plantin  of  Antwerp. 
XII.— The  Elzevirs  of  Leyden  and  Amsterdam. 
XIII. — Italy:   Privileges  and  Censorship. 
XIV.— Germany  :    Privileges  and  Book-Trade  Regulations. 
XV. — France  :   Privileges,  Censorship,  and  Legislation. 
XVI. — England:    Privileges,  Censorship,  and  Legislation. 
XVII. — Conclusion  :    The  Development   of  the   Conception  of  Literary 
Property. 

G.  P.  PUTNAM'S   SONS 
New  York  :  29  West  23d  St.  London  :  24  Bedford  St.,  Strand 


Authors  and  Their  Public 
In  Ancient  Times 

A  Sketch  of  Literary  Conditions  and  of  the  Relations  with 
the  Public  of  Literary  Producers,  from  the  Earliest  Times 
to  the  Fall  of  the  Roman  Empire. 

By  GEO.  HAVEN  PUTNAM,  A.M. 

Author  of  "  The  Question  of  Copyright,"  "  Books  and  their  Makers 
During  the  Middle  Ages,"  etc. 

Second  Edition,  Revised,  12°,  gilt  top        ....         $1.50 


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thought.  The  style  is  simple  and  straightforward,  and  the  volume  is  both  attrac- 
tive and  valuable. — Richmond  Times. 

The  volume  is  beautifully  printed  on  good  paper.  .  .  .  Every  author 
ought  to  be  compelled  to  buy  and  read  this  bright  volume,  and  no  publisher 
worthy  of  the  name  should  be  without  it. — Publishers'  Circular,  London. 

The  book  is  one  that  will  commend  itself  to  every  author,  while  at  the  same 
time  it  is  full  of  entertainment  for  the  general  reader. — London  Sun. 


G.  P.  PUTNAM'S  SONS 
New  York  :  29  West  23d  St.  London  :  24  Bedford  St. ,  Strand 


A  Literary   History  of  the 
English   People 

From  the  Earliest  Times  to  the  Present  Day. 
By  J.  J.  JUSSERAND 

Author  of  "  The  English  Novel  in  the  Time  of  Shakespeare,"  etc.,  etc. 

To  be  complete  in  three  parts,  each  part  forming  one  volume. 
(Sold  separately. ) 

Part  I. — From  the   Origins  to  the   Renaissance.     8°,   pp. 
xxii  +  545.     With  frontispiece  in  photogravure.     $3.50.     ( Sold  sepa- 
rately.) 
Part  II. — From  the  Renaissance  to  Pope.    (In  press.) 
Part  III. — From  Pope  to  the  Present  Day.   ( In  preparation.) 

We  may  say,  without  contradiction,  that  the  marvellous  story  of  our  literature 
in  its  vital  connection  with  the  origin  and  growth  of  the  English  people  has  never 
been  treated  with  a  greater  union  of  conscientious  research,  minute  scholarship, 
pleasantness  of  humor,  picturcsqueness  of  style,  and  sympathetic  intimacy. — Lon- 
don Chronicle. 

The  most  important  and  delightful  contribution  to  the  popular  study  of  Eng- 
lish literature  since  Taine's  volumes  were  published,  is  to  be  made  by  M.  J.  J. 
Jusserand  in  his  "  Literary  History  of  the  English  People."  .  .  .  Only  the 
most  meagre  sketch  of  the  pleasure  in  store  for  the  readers  of  M.  Jusserand's  vol- 
ume can  be  given  here.  No  one  interested  in  the  beginnings  of  English  literature 
can  fail  to  be  pleased  with  this  delightful  study.  A  thoroughly  stimulating  book 
.  .  .  which  will  arouse  fresh  interest  in  the  early  periods  of  our  literature. — 
Literary  World. 

M.  Jusserand  is  an  investigator  of  keen  insight  and  indefatigable  energy.  He 
has  also  the  quality  which  gives  to  him,  from  his  Latin  parentage,  synthesis  and 
literary  tact.  .  .  .  He  paints  a  picture.  .  .  .  It  is  unquestionably  true  that 
for  this  generation,  M.  Jusserand  has  said  the  last  word  on  this  subject. 
For  the  period  of  Chaucer,  he  has  summarized  what  is  known  with  admirable 
skill.  .  .  .  His  work  must  be  accepted  as  the  authority  on  the  Middle  Ages  as 
they  were  lived  in  England. — N.  Y.  Commercial  Advertiser. 

The  book  bears  witness  on  every  page  to  having  been  written  by  one  whose 
mind  was  overflowing  with  information,  and  whose  heart  was  in  abounding  sym- 
pathy with  his  work.  Mr.  Jusserand  possesses  pre-eminently  the  modern  spirit  of 
inquiry;  which  has  for  its  object  the  attainment  of  truth  and  a  comprehension  of 
the  beginnings  of  things  and  of  the  causes  that  have  brought  about  effects. — N.  Y. 
Times. 

After  so  many  excellent  works,  of  which  English  literature  is  the  subject,  have 
been  issued  in  England  and  on  the  Continent,  after  even  the  epic  work  of  Taine, 
yet  M.  Jusserand  still  contrives  to  be  original,  fresh,  and  creative.  The  history  of 
English  literature  has  been  written  before,  but  what  he  gives  us  is  something  new  ; 
it  is  the  literary  history  of  the  English  people,  that  is  to  say,  he  makes  us  follow 
the  historical  evolution  of  the  nation  in  literature,  and  what  that  evolution  has 
created  and  revealed.  He  has  employed  a  method  which  could  not  be  used  with 
success,  except  by  a  man  with  a  thorough  and  correct  knowledge  of  literature  and 
the  history  of  the  English  people,  and  of  the  people  themselves,  and  one  who  is 
worthy  of  serious  consideration  by  all  literary  historians. — Le  Revue  de  Paris, 
July  1,  1894,  on  the  French  Edition. 


G.   P.  PUTNAM'S   SONS 
New  York  :  27  West  23d  St.  London  :  24  Bedford  St.,  Strand 


AMERICAN  LITERATURE 

1607-1885 


BY 
CHARLES    F.    RICHARDSON 


Complete  in  two  volumes,  octavo,  gilt  tops     ....     $6.00 

bound  in  one,  octavo,  gilt  top,  3.50 


Part    I. — The  Development  of  American  Thought. 
Part  II. — American  Poetry  and  Fiction. 


"  Mr.  Richardson  writes  with  vivacity  and  critical  intelligence.  His 
fifth,  seventh,  and  ninth  chapters,  for  example,  which  are  monographs  on 
Franklin,  Irving,  and  Emerson,  are  a  fair  measure  of  his  powers." — N.  Y. 
Mail  and  Express. 

"  It  will  prove  a  convenient  book  of  reference,  and  a  helpful  guide  to  the 
general  reader  and  average  student." — Critic. 

"With  its  opening  volume  it  forms  the  most  intelligently  treated  and 
valuable  study  of  American  literature,  whether  for  the  student  or  leader, 
that  has  appeared." — Boston  Globe. 

"  We  can  heartily  commend  the  work,  as  a  whole,  to  the  attention  of  our 
readers  as,  perhaps,  in  all  respects  the  most  satisfactory  review  of  American 
literature  that  has  yet  appeared." — Observer. 

"  I  find  it  admirably  adapted  to  the  uses  of  a  class  who  will  take  with  me, 
next  semester,  a  course  of  lectures  on  the  same  subject.  Prof.  Richardson 
has  the  gratitude  of  all  teachers  of  American  literature. " — Louise  Manning 
Hodgkins,  Profe;sor  of  English  Literature  in  Wellesley  College. 

"It  is  proving  to  me  an  instructive  and  suggestive  volume  of  reference. 
The  author's  method  of  treatment  has  advantages  which  I  have  tested  in 
the  work  of  my  department." — S.  A.  Longwell,  Teacher  of  English  and 
Saxon  Literature  in  Smith  College,  Northampton,  Mass. 

"One  of  the  few  books  on  literature  in  which  the  historical  and  logical 
methods  are  happily  combined." — Prof.  T.  W.  Hunt,  Princeton,  N.  J. 

"  He  has  shown  a  discriminating  insight  and  literary  judgment  in  the 
treatment  of  our  American  literary  work." — New  Princeton  Review. 

"  The  most  thoughtful  and  suggestive  work  on  American  literature  that 
has  been  published." — Boston  Globe. 

"  Nothing  approaching  it  in  completeness  and  broad  grasp  of  the  subject 
has  heretofore  been  produced  by  any  writer." — New  York  World. 

"It  is  not  a  mere  compilation  of  facts,  but  enters  into  philosophical  and 
critical  discussion,  and  becomes  a  trustworthy  guide  to  those  who  would 
learn  what  American  literature  is  and  what  it  has  achieved.  It  is  itself  a 
most  desirable  contribution  to  it." — The  Churchman. 

"No  class  should  go  out  of  the  American  academy  or  high  school  that 
has  not  had  access  to  this  latest,  most  independent,  most  enjoyable  consid- 
eration of  the  development  of  American  thought." — Netv  England  Journal 
of  Education. 

G.  P.  PUTNAM'S  SONS,  New  York  and  London. 


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